A Baltimore library refused to admit Louise Kerr to a training program because she was black. Not that it had anything against blacks, but its patrons did. When Kerr launched a civil suit against the library alleging a violation of equal protection of the laws, the courts credited the library’s claim that it had no racist purpose, but Kerr still prevailed—even though the case occurred before Title VII and Brown v. Board of Education. Here a neutral and generally applicable rule (“serve the patrons”), when coupled with particular facts about private parties (the white patrons dislike blacks), yielded an unconstitutional outcome.
Evolving Objective Standards: A Developmental Approach to Constitutional Review of Morals Legislation
“[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice . . . .”
With this single sweeping statement in Lawrence v. Texas, the Supreme Court threw the validity of an entire class of laws and a long line of precedents into doubt. In dissent, Justice Scalia asserted that “[t]his effectively decrees the end of all morals legislation.” “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are . . . sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision . . . .”