Law and Morality

At Trinity, I lead a three-year men’s group called the Round Table. The first year focuses on Theology, the second on Ethics and the third year on Ideologies (Worldviews). Mike Tinney recently presented a paper on Law and Morality in The Roundtable in Ideology. Mike is an attorney by profession and has presented an excellent presentation of this subject that is well worth the read.

He divided the paper into three parts:

I. Origin and Purpose of the Law

  1. This section reflects the reality of Divine law and various theories regarding the relationship of law and a moral code.

II. Legislation and Morality

  1. Here Mike exposes both the thinking and weakness of the concept “you cannot legislate morality.”

III. Judicially Enacted Morality

  1. This last section explores the case of Obergefell v. Hodges, in which the U.S. Supreme Court struck down a law forbidding gay marriage. He includes important quotes by the Supreme Court Jurists and related cases.

I. Origin and Purpose of the Law

“See, I am setting before you today a blessing and curse: the blessing, if you listen to the commandments of the Lord your God, which I am commanding you today; and the curse, if you do not listen to the commandments of the Lord your God ” (Deuteronomy 11:26–27).

“See, I have set before you today life and prosperity, and death and adversity; in that I command you today to love the Lord your God, to walk in his ways and to keep His commandments and His statutes and His judgments” (Deuteronomy 30:15).

These verses from the Old Testament clearly show that there is great reward, both for the individual and for the society, for those who keep the laws of God as given to the children of Israel. There are also serious consequences for those who do not keep the law. Jews and Christians, at least for the most part, believe that the laws as given to the ancient Hebrews reflect the moral character of God and provide a divine definition of what is right and what is wrong. If such is the case, then these laws set out an absolute demarcation of things that are right and just and things that are evil or wrong. On the other hand, if they are only laws that were written by the ancient Jews as part of their religion or for their civil society, then they are merely one of numerous sets of laws created by civilizations throughout history; some of which are detailed, some of which are unwritten, and some which consist only of societal customs or norms.

It appears unquestionable from intuition and observation that each individual, as well as societal groups of people, large and small, have some set of values, ethics, morals, laws, or customs by which they live, or at least maintain should be followed. Each individual or group might hold their set of values above those of other groups or individuals. Obviously, those who claim that their set of values or laws came from the Creator of the universe, or from an all-knowing, wise supreme judge of the universe, would have a superior set of laws than those whose laws came from their own devices. On the other hand, those who did not believe or give allegiance to this supreme judge of the universe might take the position that those who expected them to live according to the laws of that supreme judge of the universe would be imposing their laws or values or religion on the others. I would maintain that this is true. However, those who take the position that their laws are man-made and are not based on religion cannot honestly take the position that they are not imposing their laws and values on others.

This raises several issues to be addressed. (1) Is there a divine law? (2) If there is a divine law, is it superior to all other laws? (3) Does the law, even if not divine, reflect a moral code or morality? (4) Should the law be based on a moral code or morality? (5) For those who believe a law should not be based on morality, can it be separated from morality?

This paper will deal primarily with the last three issues, but render a quick opinion as to the first two issues. First, I do believe there is a Creator of the universe and this creator of the universe is omniscient and is wholly good and therefore has the moral authority to determine what is right and wrong for all of creation and specifically the human race. Obviously, if that is the case, then the edicts of right and wrong by this Creator are in fact, the truth, and it is the responsibility of all of creation to line up accordingly. If there is no divine creator, or if people refuse to recognize a divine creator, then the concepts of right and wrong devolve into every man for himself; into relativism, or it ends up with the person or group with the most power or influence imposing their set of values on those over which they have power.

Since the time of Christ, much of western civilization has believed in a Divine Creator who is perfectly wise and just. The laws and values of that Divine Creator have been the foundation for the laws and morals of society up until fairly recently. Before going on, it must be admitted that even if one believes that the God of the Bible is the Divine Creator and that His laws are true, moral, and just, it is still not always a simple issue for human beings to determine what is right and wrong. One must determine what laws from the Bible are God’s moral laws and what laws were only ceremonial or symbolic laws for the Hebrew nation prior to the time of Christ. Secondly, God’s law contains an element of love both for God and for fellow human beings. They are more than simply a codification of rules. The greatest commandment is to love God with all one’s heart, soul, and mind and the second greatest commandment is to love one’s neighbor as one’s self. Third, the Scripture makes it plain that human beings, no matter how well intentioned, are unable to perfectly keep the law of God. There is the need for a Redeemer.

However, since the purpose of this paper is to look at the law itself, we now move to the two main schools of thought regarding the nature of law and the purpose of law. The first type of law is “Natural Law”. This is a law that comes from the Creator of the universe or “Nature’s God”. It is a divinely inspired law and thus it should be natural for every human being to follow this law. This concept is well explained by Sir William Blackstone, perhaps one of the most influential legal minds and greatest jurists of all time. His commentaries on the law of England had a tremendous effect, not only on the laws in England, but on the American colonies and upon American civilization.

“Thus when the supreme being formed the universe and created matter out of nothing impressed with certain principles on that matter, from which it can never depart, and with which it would cease to be.”[1] Blackstone further stated:

Man, considered as a creature, must necessarily be subject to the laws of his creator.

This will of his maker is called the law of nature… so when he created man, and endued him with free will to conduct himself… he laid down certain immutable laws of human nature,… and gave him also the faculty of reason to discover the purport of those laws.

Considering the creator only as a being of infinite power, he was able unquestionably to have prescribed whatever laws he pleased to his creature, man, however unjust or severe. But as he is also a being of infinite wisdom, he has laid down only such laws as were founded in those relations of justice, that existed in the nature of things antecedent to any positive precept. These are the eternal, immutable laws of good and evil, to which the creator himself and all of his dispensations conforms; in which has enabled human reason to discover.[2]

Blackstone went on to say that there is natural law and there is also law that is revealed to mankind through the Holy Scriptures. Such revealed laws are part of the original laws of nature. In summary he stated, “Upon these two foundations, the law of nature and the law of revelation, depend all human law; that is to say, no human law should be suffered to contradict these.”[3]

Blackstone also discussed the concept of absolute rights of individuals, a concept embodied in the United States Declaration of Independence and Constitution. He stated:

The rights of persons considered in their natural capacities are also two sorts, absolute, and relative. Absolute, which are such as appertain and belong to particular men, merely as individuals or single persons: relative, which are indigent to them as members of society, and standing in various relations to each other.

For the principle aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature; but which could not be preserved in peace without the mutual assistance and intercourse, which is gained by the institution of friendly and social communities. Hence, it follows: that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals.[4]

However, during the age of enlightenment and the age of reason, the concept and principles of natural law began to be rejected. Jeremy Bentham stated that “the subordinate ends of civil law are security, subsistence, abundance and equality, in this order of priority.”[5] An article from the Stanford Encyclopedia of Philosophy stated that Bentham believed that a system of laws based on the utility principle would gradually and indirectly evolve towards greater equality in the distribution of goods.[6] Bentham’s view has been called a quantitative view of utilitarianism. Bentham wasn’t the first or only one to promote a view of utilitarianism during the so-called age of enlightenment. Friedrich Nietzsche, Charles Darwin, and Karl Marx all presented some sort of legal and economic view of utilitarianism. John Stuart Mill proposed what is called a qualitative utilitarianism in which the main determents were higher pleasure or lessor pleasure. There were no absolute morals, but the main factor was what brings the greatest pleasure, which Mill said could vary from person to person or from place to place.[7]

A common factor among these philosophies was the rejection of God or divine law and reliance on human reasoning. There was no absolute right or wrong. Laws were enacted by society for the benefit of society. Morality was rejected or eliminated except in the sense that what was moral would be what brought about the greatest good for society.

These ideas led to post-modern legal theory where law is enacted and interpreted to benefit those in power and to oppress those not in power. This is a somewhat cynical, but often true characterization of law. This philosophy can also be used in reverse for those who don’t like the law to claim oppression if they don’t get their way. As an example, the poor in society, or a certain poor minority, can state that they were oppressed (which may or may not be the case) and therefore the oppressed are somewhat exempted from certain requirements of the law. An example of this philosophy is that the rich are deemed to be greedy, and, consequently, the poor cannot be greedy.

The late Harvard law professor, Harold J. Berman, in an article called “Law and Logos” set out three theories of law. One, which we have already discussed when dealing with Blackstone’s ideas, is the natural law theory which predominated in the West prior to the age of enlightenment. Berman states that this “law of nature” later became known as “due process of law” and later the “law of reason”. He states that the principle source of law was not legislation, but equity. Natural law asserts a supremacy of the moral order over political order.[8]

The second type of law Berman discusses is “positivist law” which has come to dominate American and European legal thought. Its gets its name, not from the word “positive” as opposed to “negative,” but rather positive means laws that are posited or enacted. Here, law is identified with the policies of the lawmaker. The law is enacted as the will of the state. Key concepts of the positivist school of jurisprudence are politics, order, will, power, legislation, and rules. Berman states that beneficent lawmakers will presumably issue beneficent rules; however, that is not always the case and in analyzing it, one should distinguish what the law is from what the law ought to be.[9]

The third theory of law as set forth by Berman is “historical law” which claims the primary sources of law are not politics and not morality, but history. It is not justice or order that is the primary guideline, but experience. It is not will and not reason, but tradition. Precedent and custom are important in this theory of law.[10] This appears to be a concept that law comes from what has worked in the past, or at least what has been used in the past. It could draw from both natural law and positivist law.

Berman maintains that there is a place for all three types of law and one can see each of them currently in effect in certain places. However, he states that the natural law theory has fought a rear-guard battle against positivist law since the age of enlightenment.[11] The law which defines a morality higher than that of the state is losing ground.

Berman wrote a law review article entitled “Religion and Liberty Under Law at the Founding of America” for the Regent University Law Review.[12] In some of his conclusions Berman states:

“Law is now generally considered—at least in the public discourse—to be essentially a pragmatic device for accomplishing specific political, economic, and social objectives… Rarely, if ever, does one hear it said that law is a reflection of an objective concept of justice or of the ultimate meaning or purpose of life.”[13]

Berman goes onto state that, even though today we speak of the “rule of law,” it usually means the observation of legal rules not the rule of legal justice. Berman goes onto state:

Likewise, in the last two or three generations, the concept of religion as something wholly private and wholly psychological—as contrasted with the earlier concept of religion as something public, something partly psychological, but also partly social and historical, and, indeed, partly legal—has come to dominate our discourse.

And it is in that context that the meaning of the religion clauses of the First Amendment have changed. Now, not only the federal government but also the states, are prohibited from establishing a religion, and now establishing means not only preferring one denomination to all others, but giving governmental aid specifically to religion of any kind; and further, free exercise of religion can now be lawfully restricted whenever such exercise is considered to be derived from governmental aid specifically to religion. James Madison’s belief, generally shared in America in his time and for generations thereafter, that law itself is based on a divine covenant between God and man is no longer reflected in the decisions of the Courts that interpret the clauses that he drafted.”[14]

II. Legislation and Morality

We have briefly discussed natural law, that is, law which comes from a divine creator—law which is truly just—and law which contains absolutes of right and wrong. This law also embodies individuals with certain absolute and inalienable rights. The rejection of natural law leads to positivist law, which is man-made law. The idea behind positivist law is that man, through his reason, can enact laws which are for the greatest good of society. A major problem with positivist law is that men will disagree on what is the greatest good for society. Some say it is the laws which give men the most freedom. Others maintain that it is the law which gives men the greatest economic equality. Still others maintain that it is law which give men the greatest pleasure. Rights are not absolute and inalienable; rather, they are given by the government.

One must remember an important aspect of positivist law is that if rights are given by the government, then rights can be taken away or changed. The government also gets to decide whether its philosophy of law promotes human rights, economic equality, or pleasure, or some combination of the three. Typically, because human nature is the way it is, the rights granted by the government tend to favor those in government and may not be equally distributed. This gives rise to the post-modern legal theory that laws are enacted and interpreted to benefit those in power. In short, laws made by the government are no better than those people that are in the government.

To further increase the problem, if mankind rejects a creator and concludes that mankind evolved, then there are no divine laws and there is no absolute right and wrong. If man is a complex animal that evolved by random processes, how can man be held morally accountable? Those who promote such positions maintain that man is morally accountable to his fellow human beings or to the government. But even if one accepts this, to whom is the government accountable? The laws and values of society will change with the whim or the idea of those in power (and there are some who think that is the way it should be) with no moral absolutes. If man evolved, then no one can say that any person’s ideas are better than any other ideas or that there are any ideas that are “right” or “wrong,” or ideas that are “good” or “evil”. Those who espouse the positivist theory of law must necessarily reject natural law. They also reject the morality of natural law. Natural law gets labeled as religion. It may be allowable for those who adhere to certain religions to respect that law, but they have no business imposing that law on those who do not follow such religion. Laws are enacted by the government and rights are given by the government. Civil laws are enacted to protect whatever rights the government deems are worthy of being protected.

Most of those who espouse positivist law, especially those who would consider themselves progressive or liberal, or some combination of progressive and libertarian, take the position that morality should not be part of the law. That is, one person’s morality should not be imposed on another and certainly one group’s religion should not be imposed on others or society as a whole. They take the position that the government cannot legislate morality, or at least, it should not try to legislate morality.

It should be apparent that those who advocate a progressive form of government or modern liberalism, obviously have rejected natural law. To them, rights come from the government. Further, progressives assume that the general population does not know what is best, and an educated, intelligent, and powerful group of leaders need to control the government. These leaders need to decide what is best. Rather than democratically passed laws, more orders from the executives or even the judicial branch are needed. The harsh way of enacting this philosophy was fascism. A more political way is modern progressivism. Ideally, for progressives to stay in power, they must persuade the population that they are doing what is best for the population. Government handouts, however they are couched or packaged, are a great way to accomplish this. As stated, progressives, along with others, will oppose natural law because they have rejected many of its moral teachings and because of their firm belief that religion has no part in government and should not be imposed on others. However, this does not prevent the progressives, positivists, or whatever, from imposing their philosophy.

The argument that you “should not legislate morality” has long been used by those who advocate using certain recreational drugs. Those who advocated unrestricted abortions argued that any restrictions on abortion were the legislation of morality. Those in favor of gay marriage argue that restrictions on homosexual marriage are religious in nature and thus, the legislation of morality. But, those who say that one cannot, or should not, legislate morality are almost always in favor of legislating morality that they agree with. If the term “morality” or “morals” is taken in a broader sense, outside of a strictly religious context, and interpreted to mean what is right or wrong, or what is best, or a concept of personal values or societal values, then it is hard to find a law which does not touch on morality.

Both an advocate of natural law and an advocate of positivist law would hold that murder is wrong or against the law; or that stealing is against the law. One would argue that it is morally wrong to unjustly take another’s life or to take another’s property. The positivist would argue that it is a violation of one’s civil rights or societal order. But, it is only a violation of civil rights because a society places a value on those civil rights. Almost all societies recognize that a society cannot function if there is not a consequence for killing someone you are mad at. People cannot indiscriminately take another person’s property. That is a moral value of almost every society. As a matter of fact, almost every person who claims that one cannot legislate morality or that we are a product of unguided evolution, still claims to have some moral values and some concept of right and wrong. It is probably safe to say that nearly all atheists, positivists, and libertarians would agree that it is wrong for a person to get drunk and then drive an automobile so that an innocent person is killed. Statutes that outlaw driving under the influence are based on a moral value that human life is important and to unnecessarily place that human life at risk is unlawful. For the same reason, there are laws against speeding on the highways. Why are there laws slowing people down when they go through school zones? Is it because there is a possible violation of a child’s civil rights if one runs over them, or is it because society places a value on a child’s life and deems it morally wrong to place a child’s life at risk?

We have sanitation laws that prohibit us from throwing our garbage and refuse in the street or on our neighbor’s property. There are sanitation laws that apply to food handling in restaurants. These laws reflect a moral or a value from society that we have a duty to the public at large not to promote the spread of disease or filth. There are those who maintain that morality should not be imposed upon them, or someone else’s laws should not be imposed upon their bodies, who still maintain that what we are doing to the planet is “immoral”. They have taken the position that pollution is immoral. There are people who favor no restrictions on abortion and proclaim that any abortion restrictions are imposing morality on themselves or others, and yet take the position that the death penalty is immoral. They may maintain that there is no sufficient due process of law that would cause a murderer to forfeit his or her life, and yet still argue that due process of law would not apply to an unborn child. Isn’t such an argument based on values or morals? They may maintain that abortion is a civil rights issue and if so, it should be a balancing of the rights of the mother, the father, and the unborn child. But how one values the rights or the life of the unborn child, and the rights of the mother and the father is a moral issue.

There are those who maintain that regulating sexuality is an attempt to legislate morality. A person should have the right to choose his or her sexual partner or as many sexual partners as they want without interference from other people or the law. Yet, many of those people would still agree that there is a need for laws concerning the statutory rape of a minor. They might argue that it is just a civil rights issue and that a minor cannot give legal consent. Yet, again, the idea that a minor cannot give legal consent is based on a value or a moral to protect the rights of minors.

Homosexuals, who lobby for the right to marry, objected to laws which prevented them from marrying each other. Yet there are other laws regulating marriage that say that a person cannot marry several people; cannot marry a five year old child; cannot marry their pet; or cannot marry their sister. All of these laws are based on the value which society gives to marriage, procreation, the home, and basic decency. Whether one is for or against gay marriage, it is a moral value, and whichever side prevails is imposing its morals or values on the other side. Many people who advocate the legalization of marijuana for recreational use are against smoking in public restaurants. In their mind, the legalization of recreational marijuana is a private matter, but smoking in public imposes a public health hazard. How far privacy goes and what restrictions may be placed on people for public health reasons are based on moral perceptions of both the rights and the value of health.

Some people think it is good morality to tax the rich much more than others so that wealth can be redistributed to those who don’t have as much. Others think it is immoral to purposely take away the earnings from those who are successful—just because they have more.

If one cannot legislate morals, why outlaw slavery or why outlaw human trafficking? Why outlaw child abuse?

It is clear that all laws enact some sort of individual or societal value which is a form of morality. It is easy to understand how people who disagree with such laws might feel like their personal preferences are being violated and that someone else’s morality is being imposed upon them. It could be argued that under the positivist view of law, that some laws are passed not for moral issues, but rather for policy issues. For example, a law banning smoking in public might be enacted, not because people believe that it is morally wrong to harm the health of others, but rather that if more people have lung disease it will cost the state more. There are people who believe that to illegally enter the United States and to disobey some of the laws of the United States while taking advantage of other laws is morally wrong. Other people believe that to deny a person the opportunity to come from poverty and have a better life is morally wrong. There are others who don’t have a position based on principal, rather just follow the most current trend or what is most beneficial to them.  There are politicians or government officials that may not care one way or the other regarding gay marriage, but vote in favor of gay marriage because it is politically expedient. Thus, the morality of certain laws, or the right and wrong of such laws, may not matter to some. Yet their refusal to care is in itself a moral issue. Thus, a person who doesn’t care one way or the other on gay marriage but takes a position because it is politically expedient, is showing that person’s values. It shows their own political ambition is more important to them than whether gay marriage is right or wrong. Thus, the law itself reflects moral values and how people react to the law also reflects their moral values.

To quote Professor Harold J. Berman again, from his book “The Interaction of Law and Religion,”

[T]he view that a Judge, in reaching his decision, is not propounding the truth but is rather experimenting in the solution of a problem, and if his decision is reversed by a higher Court or if it is subsequently overruled, that does not mean it was wrong but only that it was, or became in the course of time, unsatisfactory. Having broken away from religion, Franck states, the law is now characterized by “existential relativism.” Indeed, it is now generally recognized ‘that no judicial decision is ever final’, that the law both follows the event (is not eternal or certain) and is made by man (is not divine or true).[15]

Professor Berman asked a question that if the law is merely an experiment and if judicial decisions are only hunches, why should individuals or groups of people observe those rules or commands if they do not further their own interests. Rules without absolutes are rules without authority; that is moral authority. They only have the authority of those who have the ability to force compliance with the laws. For some that is sufficient. Others want to follow absolute right and wrong and true justice. To others there is no such concept.

Nevertheless, one must be honest and agree that all laws embody some morality or someone’s morality. Law, without morality, is a misnomer. The parties that enforce the law or enact the laws are always imposing their morality on someone else. The issue is not whether the law is free from morality, but whose morality is being enforced.

III. Judicially Enacted Morality

It is ironic that most of those who take the position that morality should not be legislated, or that the morals of the majority should not be applied to an objecting minority, seem to have no problem with a decree of morality issued by a court—as long as it is in their favor. Groups like the ACLU, which often object to the imposition of laws and morality upon individuals, have been the leaders in asking the U.S. Supreme Court to dictate a morality similar to their views.

We have already examined some of the comments by Professor Berman regarding how the religion clauses of the First Amendment have been changed through court decree. Numerous books have been written on that subject and it will not be further addressed in this paper. Rather, a look at the some of the court cases that dictated morality, the philosophy and law behind those cases, and what lead to those cases will be examined.

In Obergefell, a narrow majority of the Court went against the legislative desires of the people and held that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex. Proponents of gay marriage took the position that this case struck down laws by which a majority imposed its morals upon a minority. Others take the position that the Court decided to enact its own morality regardless of the will of the people.

In Obergefell the Court stated that “the fundamental liberties protected by the Fourteenth Amendment’s due process clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices of defining personal identity and beliefs”, citing Griswold v. Connecticut, 381 U.S. 479. The Court noted that the history of marriage is one of both continuity and of change.

In Obergefell the Court went on to enunciate four principles and traditions that demonstrate the reasons marriage as fundamental under the Constitution must apply with equal force to same-sex couples. The first premise is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. The second principle is that the right to marry is fundamental because it supports a two person union unlike any other in importance to the committed individuals. This imminent association protected by this right was central to Griswold v. Connecticut, which held the Constitution protects the right of married couples to use contraception.

A third basis is that it safeguards children and families and thus draws meaning from related rights of child rearing, procreation, and education. Fourth, the Court’s cases and the nation’s traditions make it clear that marriage is a keystone of the nation’s social order.

In overruling a previous case, the Court stated, “The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protections Clauses of the Fourteenth Amendment couples of the same sex may not be deprived of that right and that liberty.”

The Court went on to state that while the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right.

In essence, the Court’s argument is that since marriage is very important and involves intimacy, restrictions on the right to marriage should be struck down. One could take the position that since marriage is so important, the will of the people through legislative process should dictate the laws of marriage rather than five Supreme Court justices. However, one could see Obergefell coming based on a series of prior Supreme Court decisions. In United States v. Windsor, 570 U.S. ____, (2013) the Court struck down the Defense of Marriage Act (DOMA). In that case two women had gone to Canada where gay marriage was legal and then moved to New York. When one of them died, the other one elected to take a one-half share of the estate equal to that of a surviving spouse. (New York had legalized gay marriage by the time the Windsor opinion was issued.)

Although DOMA has been passed on a bi-partisan basis during the Clinton administration, the Court stated that DOMA was an unconstitutional deprivation of equal liberty under the Fifth Amendment. It went through a list of reasons why same-sex couples whose marriage would not be recognized would not have the same benefits of legitimately married couples. The Court essentially held that people not legitimately married should have the same rights as those legitimately married and that to hold otherwise would be inequality under the Due Process Clause. And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the due process of the Fifth Amendment. In my opinion, the Court seems to forget that equal protection under the law applies to people who have equally followed the rules under the law. Those who do not follow the rules do not necessarily have the right to the same results.

It is interesting to note that the Court in Windsor held the enactment of DOMA departed from the history and tradition of state law to define marriage. DOMA’s enactment interfered with the state’s right to exercise their sovereign power. The Court held that New York should have the right to define marriage. Yet, ironically, in Obergefell the Court held that those states that defined marriage between a man and a woman could not do so. Thus, the Court deferred to state’s rights when such would favor gay marriage and took away state’s rights to define marriage otherwise.

But the shifting precedence goes back even further. As recently as 1986, the Supreme Court held that laws that declared homosexual acts a crime were constitutional.[16] This case was overruled in 2003 by Lawrence v. Texas, 539 U.S. 558. The Court concluded that the Petitioners were free as adults to engage in the private conduct and exercise of their liberty under the Due Process Clause of the Fourteenth Amendment. The Court relied heavily upon Griswold v. Connecticut. The Lawrence decision stated that the Court had previously misapprehended the claim of liberty presented to it in holding there was no fundamental right to engage in consensual sodomy. One wonders, did the Constitution change in 17 years? The Court’s opinion is a reflection, not of the changes in the law or of the Constitution, but rather in the ideas and values of the majority on the Supreme Court, which may or may not have been a reflection of the change in ideas and values of the general public. Regardless, the Constitution did not change although the Court’s interpretation did an about-face.

One can follow the Court’s trail into the creation of rights under the Constitution and the resulting decree of morality even further. As previously mentioned, the Court in several of the decisions above relied on the case of Griswold v. Connecticut. Another famous or infamous case of Roe v. Wade also relied on Griswold. An analysis of the Griswold case helps to show how the Court somewhat reluctantly, and then almost wholeheartedly, jumped into the realm of creating rights under the Constitution when the Justices, in their own personal opinions, decided they were necessary.


The case of Griswold v. Connecticut, 381 U.S. 479 (1965) is interesting. While this case is not the first to mention a right of privacy (this concept arose out of search and seizure cases), it is the first to use it in the context of reproduction. It paved the way for Roe v. Wade. The gymnastics the justices went through is informative and almost entertaining. This case shows the danger when even well intentioned judges attempt to wrestle with what they think is a bad law. They open doors that lead to policy making from the bench and allow judges with an agenda to wreak havoc with the law. Just these two cases mentioned above provide a microcosm of how judicial activism works.

Griswold had a majority of six justices, but, in addition to the majority opinion, there were three separate concurring opinions and two dissenting opinions. Thus, there were six opinions out of one case, as the judges struggled to find a basis for the ruling which they all admitted was not explicit in the Constitution.

This case dealt with an old, hardly enforced Connecticut law that made it illegal for anyone, even a married couple, to use contraceptives of any type. The majority opinion was short and it found that “specific guarantees in the Bill of Rights have pneumbras, formed by emanations from those guarantees that help give them life and substance.” (484)  (Anita these page numbers should be a footnote “Griswold at #”) The Court held that the right of privacy in marriage is such a right, older than the Bill of Rights itself. We can probably all agree that the right of privacy with regard to intimacy in marriage is a good thing – but we can also see that the mechanism by which the court arrives at such right opens the door by which almost any policy or opinion can become law or be used to strike down a law. In essence the court is saying that the rights emanate out of the shadows of the enumerated rights in the Constitution.

In his concurring opinion Justice Goldberg tried to find a constitutional basis for his decision. He said that “Although the Constitution does not speak in so many words of the right of privacy in marriage, I cannot believe that it offers these fundamental rights no protection.” (495) He said that the Ninth Amendment recognizes “there are fundamental personal rights which are protected . . . though not specifically mentioned in the Constitution.” (496) He denies that he somersaulted the Ninth Amendment as implied by the dissent. (493)

The Ninth Amendment provides that the enumeration of certain rights in the Constitution shall not be construed to deny or disparage other rights retained by the people. In my opinion he did turn upside down the Ninth Amendment. It reserved such rights to the people. The people of Connecticut enacted a law. If the antiquated law was brought to the people’s attention, they could repeal or modify it. It is their right. But, here, in trying to create and protect such right, the Court actually took it away from the people. The court is telling the people that they cannot exercise this right that was clearly reserved to the people.

Justice Harlan stated early in his concurring opinion that he heartily agreed that self-restraint is an indispensable ingredient of sound constitutional adjudication, but went to suggest that such concept is more hollow than real. He said specific provisions of the Constitution “lend themselves as readily to ‘personal’ interpretations by judges whose constitutional outlook is simply to keep the Constitution in ‘tune with the times’” (501) We are on dangerous ground if our justices believe it is their duty to personally fine tune the Constitution to fit the times.

In Justice Black’s dissent, he hit the nail of judicial activism on the head:

One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning. This fact is well illustrated by the use of the term “right of privacy” as a comprehensive substitute for the Fourth Amendment’s guarantee against unreasonable searches and seizures. “Privacy” is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures. (509)

This technique is used today by demagogues and politicians and others. They select a “flexible” word that the audience may think means one thing, but the speaker, and those with an agenda, know it means something else.

Justice Black disagreed with the Court’s recent “discovery” that it can use the Ninth Amendment and Due Process Clause “as authority to strike down all state legislation which this Court thinks violates “fundamental principles or liberty and justice,” or is contrary to the “traditions and [collective] conscience of our people.” (519)

Justice Stewart in his dissent noted that the Court referred to six different amendments to the Constitution in its efforts to rationalize its decision, but does not say which of those amendments was violated by the Connecticut law. He went on to say:

What provision of the Constitution, then, does make this state law invalid? The Court says it is the right of privacy “created by several fundamental constitutional guarantees.” I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court. (530)

To me an analysis of Griswold shows how subtle and pervasive is the “progressive” or “statist” philosophy that the government believes it has the right to regulate the day-to-day lives of its citizens for their own good. Even if one gives the Court the benefit of the doubt that they were was trying to get rid of a bad law, this still led the way to Roe v. Wade and its successors, and shows how those with good intentions can start down a path that takes away rights in the name of protecting those rights. Worse, once the pathway is started, those with not so good intentions can continue on to the end of the path.

Roe v. Wade

In Roe v. Wade, 410 U.S. 113 (1973), seven of the nine justices struck down a Texas law that made abortions illegal except to save the life of the mother. It noted similar laws existed in most states. After the Court finished discussing procedural issues, such as standing, and came to the analysis of the abortion issue, the first case cited by the Court was Griswold. The abortion proponents argued for a concept of personal liberty embodied in the Due Process Clause and in personal, marital, familial, and sexual privacy protected by the Bill or Rights or its pneumbras as stated in Griswold. Griswold is cited several more times in the opinion.

In its opinion, the Court noted its “awareness of the sensitive and emotional nature of the abortion controversy” (116) and then spent a great deal of time discussing abortion laws and policy from antiquity to current times. The Court then took it upon itself to balance the rights of the mother and the unborn child and came down heavily on the side of the mother. The Court decided that in the first trimester the decision belonged to the mother. The state had some limited rights (very limited as later cases determined) in regulating abortions until the time of viability. After viability the state’s ability to regulate or even proscribe abortions increased, but this was emaciated in later decisions.

Thus, in one decision, the Court declared numerous state laws to be unconstitutional and decided the framework for the abortion laws for the entire country.

It is worth noting that the Court stated:

We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer. (160)

Thus, we have the Court stating that it is not qualified to and cannot make the decision as to when life begins, and then, it goes own to rule that those unborn children – that for all the Court knows – could be a human life entitled to due process of law – may be terminated at the discretion of the mother. The Court says it was not qualified to play God, yet it did. The Court, in one sense used the Bill or Rights against the citizens, in that it took it upon itself to make the law regarding those rights, rights that were, by the Constitution, left to the people.

Of course, the liberal argument would be that the Court did the right thing. It took the right to regulate abortions away from the majority of the people and the lawmakers and gave it to the individual, where it belongs. This sounds good, except it omits the rights of the unborn child. The problem with this ruling is that it takes away the right of society or the people to protect the life of the unborn child.

The concurring opinion of Justice Stewart in Roe is intriguing in that he appears to do a flip-flop from his dissenting opinion in Griswold. He first quotes Justice Black, a statement which succinctly sums up what is and what is not judicial activism:

We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws, Ferguson v. Skrupa, 372 U.S. 726, 730 (1963).

But, Stewart goes on to mention Griswold, where the Court struck a statute that did not violate the Bill or Rights or the Constitution. He goes on as if he “saw the light” that Griswold set out a “liberty” that is protected by the Due Process Clause of the Fourteenth Amendment. He says he now accepts such and states that the abortion right is a right of personal liberty protected by the Fourteenth Amendment.

The about-face by Stewart shows how far reaching a simple shift in philosophy or policy by a justice can be in regard to law. Did Stewart, an esteemed jurist, become more familiar with the law in the eight years between Griswold and Roe? Did he just change his mind or philosophy? Was he just giving in to precedent? This does not appear likely in that he appears to heartily endorse the decision in Roe. Somewhat disconcertingly, it appears that Stewart gave up on the philosophy that he cited from Justice Black and embraced judicial activism, where the Court substitutes its own views for that of the elected legislative bodies.

Or, in the words of Justice Rehnquist in his dissent in Roe, “To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.” (176)

Again, these two cases are a microcosm of judicial activism, how it starts, and how far it can go. Today, for any particular case, there are dozens or even hundreds of relevant previous decisions. If the Constitution is like a tree trunk and major branches of a tree, then statutory law is the medium size branches, and case law is the small branches, twigs, and leaves. This means a court, rather than just applying the relevant law to a situation, can usually, if it chooses, decide how it wants to rule and then find the case law that supports the result.

This can be good and bad. In a situation where there is no specific law that protects an individual or where strict application of the law would yield an unjust result, a judge or court has the flexibility to craft justice. On the other hand, a judge or court with a certain policy or agenda can rule consistently with that policy and cherry pick from the vast case law to support its result.

Unfortunately, in the hands of unscrupulous courts, or an agenda driven court, today there is enough ammunition (case law) for a court to strike down almost any law and enact its own policy. That this plays a large role in real life is obvious when we see that the qualifications for the appointment of an appellate judge are based more on a philosophy consistent with the appointing party, rather than scholarly qualifications and jurisprudence.

Judicial review is good to protect against a tyrannical government that might enact laws that take away rights guaranteed under the Bill of Rights or to protect the rights of individuals from an overzealous majority. But, it must be kept in mind, by its nature, judicial review, to some degree, reflects the philosophy of the judges. If those judges are respectful of the laws enacted by the legislative bodies of the people they will see as their primary task to apply the law. However, if those judges believe their own opinion of what the law should be is more important than what the lawmakers believe; or if their goal is to promote a particular philosophy; or to follow the agenda of a politician to whom they are beholden; then our system of government is in jeopardy.

Obergefell Again

After reviewing this information, one goes back to the current case of Obergefell. The Court stated that sexual intimacy with a person of the same sex and marriage to a person of the same sex were a fundamental right and to deny those rights would cause pain and humiliation. The Court also stated that the opponents had not shown a foundation for the conclusion that allowing same-sex marriage would cause the harmful outcomes they describe. The Court went on to state that it is appropriate to observe these cases that only involve the rights of two consenting adults whose marriages pose no risk of harm to themselves or third persons. It is also interesting to note the Court’s following comment regarding the effect of the ruling on religious freedom:

Finally, it must be emphasized that religions, and those who inherit the religious doctrines, may continue to advocate with the utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach principles that are so fulfilling and so essential to the lives and faith, into their own deep aspirations to continue the family structure they have long revered.

This statement is somewhat disconcerting when one realizes that Justice Kennedy, who wrote the Obergefell opinion, authored the 2010 opinion in Christian Legal Society v. Martinez, which held that on-campus religious groups cannot prevent homosexuals from serving as leaders in their groups, even if homosexuality is considered wrong or immoral by that religion.

Numerous dissents were written to the Obergefell opinion, and it is interesting to look at excerpts from those dissents. In his dissent, Justice Scalia stated:

Until the Courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately but “respectfully” attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote.

Justice Scalia went on to state:

When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the people who ratified the provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification. We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text… But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummies and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the people ratified, the Fourteenth Amendment protects those rights that the judiciary, in its “reasoned judgment” thinks the Fourteenth Amendment ought to protect.

Justice Clarence Thomas started his dissent with the following statement:

This Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from governmental action, not entitlement to government benefits.

Justice Thomas went on to evaluate the inevitable conflict between individuals and churches confronted with demands to participate in a same-sex marriage ceremony. He noted the framers of the Constitution relied heavily on Blackstone. He remarked about the Court’s only weak gesture toward upholding religious liberty and stated:

And even that gesture indicates a misunderstanding of religious liberty and our Nation’s tradition. Religious liberty is about more than just the protection for “religious organizations and persons… as they seek to teach the principles that are so fulfilling and so central to their lives and faith.” Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice.

Had the majority allowed the definition of marriage to be left to the political process—as the Constitution requires—the People could have considered their religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority’s decision short circuits that process, with potentially ruinous consequences for religious liberty.

In his dissent, Justice Alito stated:

The question in these cases, however, is not what the States should do about the same-sex marriage but whether the Constitution answers the question for them. It does not. The Constitution leaves that question to be decided by the people of each State.

Justice Alito went on to discuss what the term “liberty” means:

The Constitution says nothing about a right to same-sex marriage, but the Court holds that the term “liberty” in the Due Process Clause of the Fourteenth Amendment encompasses this right. Our nation was founded upon the principle that every person has the unalienable right to liberty, but liberty is a term of many meanings. For classical liberals, it may include economic rights now limited by governmental regulation. For social democrats, it may include a right to variety of government benefits. For today’s majority, it has the distinctively postmodern meaning.

To prevent five unelected Justices from imposing their personal vision of liberty upon the American people, the Court has held that “liberty” under the Due Process Clause should be understood to protect only those rights that are “‘deeply rooted in this Nation’s history and tradition (citation omitted). And it is beyond dispute that the right to same-sex marriage is not among those rights.

Justice Alito goes on further to state that the Court’s decision will be used to:

Vilify Americans who are “unwilling to assent to the new orthodoxy”. In the course of its opinion, the majority compares traditional marriage laws to the laws that denied equal treatment for African Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

In regard to the opinion of the majority’s statement of religious liberty, Justice Alito stated:

Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

Justice Alito concluded with this warning:

Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate.

Law professor, Carl H. Esbeck, writing for the Christian Legal Society, stated:

Secular scholars are asking: Why is religion special? Why should religious claims get special protection? Have not we, as an American polity, outgrown the First Amendment’s special carve-out for religion? What scholars really mean is: Religion is not special, indeed it is unprogressive and thereby harmful.[17]

One law professor, with a reputation of being radical and a long-time supporter of gay marriage even admitted: “Opponents of the decision are already claiming that the Court was just making it up, on the basis of the judges’ personal preferences. This opinion supports that charge.”[18]

The Editor in Chief of the Journal of Christian Legal Thought had this to say about the Obergefell decision:

The most troubling aspect of Obergefell is not what it does to marriage. Marriage has been in trouble for decades, thanks to the poor showing by the Church on that score and our failure to raise a biblically-literate generation with tools to hold fast under cultural onslaught. No, the alarming thing about this opinion is how it treats law itself, the role of judges, and the Constitution.

Obergefell is in many ways a culmination of 50 years of judicial law-making by raw political power. If law does not constrain judges, then words can be ignored (think “right to privacy,” which appears nowhere in [the] Constitution, but instead” emanates from penumbras” of other rights), and a judge’s personal preference may be substituted for the will of the people, laws passed by congress, or the language of the Constitution itself, as the case may be. Justice Scalia sums it up in his Obergefell dissent:

Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.[19]

Other Cases

Since the racial segregation cases were referred to, it would be helpful to just briefly review some of those cases. Most Americans, even those who advocate for judicial restraint and conservatism, would take the position that those cases did a great deal of good. The same arguments about judicial activism could be used in regard to those cases. The case of Loving v. Virginia, 388 U.S. 1 (1967) invalidated bans on inter-racial marriages. The Court found that the statutes encompassed invidious racial discrimination. It went on to hold that marriage is one of the basic civil rights of man and that to deny an inter-racial marriage would be to directly subvert the principle of equality at the heart of the Fourteenth Amendment. The Court stated that:

The Fourteenth Amendment requires that the freedom of choice to marry may not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, the person of another race resides with the individual and cannot be infringed by the State.

A more famous opinion is Brown v. Board of Education, 347 U.S. 483 (1954). In a short opinion, the Court stated:

Segregation of white and colored children in public schools has a detrimental effect on the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted at denoting the inferiority of the negro group. The sense of inferiority affects the motivation of a child to learn…

We conclude that in the field of public education a doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal.

The Court went on to state that the segregation deprived parties of equal protection of law guaranteed by the Fourteenth Amendment.

While most would agree with the Brown v. Board of Education ruling and the elimination of miscegenation laws, there was more disagreement when it came to issues of forces integration and forced bussing. An example of one of these cases is Swann v. Board of Education, 402 U.S. 1 (1971). In that case the Court didn’t exactly strike down, but “reapplied” a provision of the Civil Rights Act that provided that “nothing should empower any official or Court of the United States to issue any order seeking to achieve racial balance in any school by requiring the transportation of pupils or students from one school to another or one District to another in order to achieve such racial balance.” In a somewhat amazing reading of the statute, the Court went on to state that there was no suggestion of intention in that statute to restrict the powers or to withdraw from the Courts their historic equitable remedial powers. The Court stated that:

If the school authorities fail in the affirmative obligations under these holdings, judicial authority may be invoked. Once a right and a violation have been shown, the scope of the District Court’s equitable powers to remedy past wrongs is broad.”

IV. Conclusion

It is a well-supported conclusion to state that laws reflect the values and moralities of the people who enact those laws, whether it is under a naturalist law system or positivist law system. Many court decisions enact by decree the moral positions of the judges or justices. The issue is not whether laws reflect values and morality, but whose values and moralities will be reflected in those laws. There is only one true just law giver and one who has truly established right from wrong. It would make sense to pay attention to the One who is the Creator and Author of true justice.

[1] Sir William Blackstone, “Of the Nature of Laws in General,” Commentaries on the Laws of England (1765-1769),  Based on the first edition printed at the Clarendon Press (Oxford, England), copyright Lonang Institute 2003, 2005,
[2] Sir William Blackstone, “Of the Nature of Laws in General,” Commentaries on the Laws of England (1765-1769),  Based on the first edition printed at the Clarendon Press (Oxford, England), copyright Lonang Institute 2003, 2005,
[3] Sir William Blackstone, “Of the Nature of Laws in General,” Commentaries on the Laws of England (1765-1769),  Based on the first edition printed at the Clarendon Press (Oxford, England), copyright Lonang Institute 2003, 2005,
[4] Sir William Blackstone, “Of the Absolute Rights of Individuals,” Commentaries on the Laws of England (1765-1769),  Based on the first edition printed at the Clarendon Press (Oxford, England), copyright Lonang Institute 2003, 2005,
[5] James E. Crimmins, “Jeremy Bentham”, The Stanford Encyclopedia of Philosophy (Spring 2015 Edition), Edward N. Zalta (ed.), URL = <>.
[6] James E. Crimmins, “Jeremy Bentham”, The Stanford Encyclopedia of Philosophy (Spring 2015 Edition), Edward N. Zalta (ed.), URL = <>.
[7] Norman Geisler and Peter Bocchino, Unshakeable Foundations (Minneapolis: Bethany House, 2001), 193.
[8] Harold J. Berman, “Law and Logos”, a lecture at DePaul University’s 1994 Center for Church/State Studies,
[9] Harold J. Berman, “Law and Logos”, a lecture at DePaul University’s 1994 Center for Church/State Studies,
[10] Harold J. Berman, “Law and Logos”, a lecture at DePaul University’s 1994 Center for Church/State Studies,
[11] Harold J. Berman, “Law and Logos”, a lecture at DePaul University’s 1994 Center for Church/State Studies,
[12] Regent University Law Review “Religion and Liberty Under Law at the Founding of America”; Harold J. Berman, Vol. 20 (2007).
[13] Regent University Law Review “Religion and Liberty Under Law at the Founding of America”; Harold J. Berman, Vol. 20 (2007), 35.
[14] Regent University Law Review “Religion and Liberty Under Law at the Founding of America”; Harold J. Berman, Vol. 20 (2007), 35.
[15] John F. MacArthur, Matthew 1–7, The MacArthur New Testament Commentary (Chicago: The Moody Bible Institute of Chicago, 1985), 249.
[16] Bowers v. Hardwick, 478 U.S. 186.
[17] Carl H. Esbeck, “A Post-Obergefell America: Is a Season of Legal and Social Strife Inevitable?” The Christian Lawyer,—post-obergefell-america-article#.
[18] Michael P. Schutt, “Speaking of Religious Freedom: The Trouble with Obergefell” Journal of Christian Legal Thought, Fall 2015, page 35,
[19] Michael P. Schutt, “Speaking of Religious Freedom: The Trouble with Obergefell” Journal of Christian Legal Thought, Fall 2015, page 35,