Date:  5/7/2013

Philosophy 110

Instructor: Sarah Braasch

Re:  Lawrence v. TX


What is liberty and freedom? Are they nothing more than illusory? The main issue revolving this issue is the plead for liberty; absolute liberty. However, this desire is unattainable, since such a thing does not exist. It does not exist because of the existence of morality, specifically, the existence of an objective moral law that transcends social law. One may be able to bend the social law, however, one has no authority to change the standards of the higher objective moral law. In this respect, the concept of liberty cannot come before morality; liberty needs to proceed after morality in order for there to be coherence and order. Therefore, in the Lawrence v. Texas case, the Supreme Court’s objection of morality being a sufficient reason to exercise government authority because it conflicts with the concept of liberty in the 14th Amendment, and leads to a contraction, mainly since laws are based off of morality, therefore, to rule out morality based on the cry for liberty is a fallacious attempt.


The 14th amendment, which says that government cannot infringe upon an individuals rights to life, liberty, or property without due process, is being questioned as Kennedy and Scalia argues whether morality is a valid or invalid reason for government concern. Fundamental rights are on the line, which were determined by our nation’s history, traditions, and practices, which are embedded in the U.S. constitution; government can only intervene on fundamental rights based on sufficient and substantial reasons to do otherwise. The Supreme court has determined that privacy, including private consensual sexual recreation, that is for the purpose of procreation or not, is an individual’s fundamental right, therefore, if the government wishes to intrude on such matters, they must have strong reason to do so. In the case of Bower v. Hardwick, the Supreme Court ruled that the moral disapproval of the citizenry is a sufficient reason for the government to ban homosexual sexual conducts, and branded it as a matter that is not a fundamental right. Kennedy attacks this case by stating that the Bower v. Hardwick case is interpreting the rights wrongly, he argues that the actual rights are the rights to privacy, and government needs powerful reasons to invade individual’s rights of privacy. On this premise alone, Kennedy argues that the government failed to hold any substantiate reasons for prohibiting same sex marriage and employing the anti-sodomy laws; furthermore, he asserts that this issue does not impact society as a whole. In Lawrence v. TX, the issue of whether morality was a sufficient factor to consider when legislating was declared an unimportant factor for government intervention. In this case, the Supreme Court declared that government does not have the means to interfere in the private sexual activities of two consenting adults, if the reasons are merely moral approval or disapproval of the citizenry, then the government has no grounds to intrude in a private matter between two consenting adults. If this is the case, then it logically follows that the government has no solid grounds to interfere with the private matters between consenting adults, and moreover, the anti-sodomy laws are thereby unconstitutional under the Due Process Clause of the 14th Amendment of the U.S. Constitution.                           

However, Scalia presents an argument that mere moral approval or disapproval of the citizenry as a whole is an adequate reason for government intervention. Furthermore, Scalia argues that if morality no longer is valid to induce government interest, it would naturally follow that the Lawrence v. TX case, does not only restrict state anti-sodomy criminal statutes, but also condone polygamy, bestiality, incest between adults, and pornography. Therefore, the state is removed of any interest to forbid same-sex couples to marry. Scalia continues on to reprimand Justice Kennedy for desensitizing law making by carelessly creating laws with no higher, transcending purpose. He continues to say that this is the nature of the democratic political process. Scalia argues that the constitution, by nature, is a document of moral implications.


The relevant cases and laws pertaining to this issue are the Lawrence v. TX and Bower v. Hardwick case in respects to the 14th Amendment and Scalia’s interpretation of these cases. In Lawrence v. TX, the Supreme Court ruled that mere moral disagreements or agreements of the citizenry are not an adequate reason for government to intrude upon an individual’s private rights, specifically, two consenting adults who participate in sexual activities. Therefore, the Bower v. Hardwick case, which enable government to prohibit sodomy because of the majority moral disapproval of the citizenry was overturned, since pure moral disapproval of the majority cannot violate the fundamental right an individual has of privacy, despite whatever activities individuals do in their private leisure. However, Scalia takes a different approach to this matter and introduces the idea of how idiotic it is to remove morality from legislating, since morality, Scalia argues, is the backbone behind the U.S. constitution; therefore, if morality is no longer a legitimate reason for legislating, then all laws, including the constitution is void.


Morality is a tricky issue, but nonetheless an important issue to tackle when dealing with anything, and in this case– laws. I will attempt to give morality justice, by defining it as finely as possible. Morality, first most, is the restrictor to the idea of absolute freedom; it is the context in which certain things are permissible and other things are not, indefinitely, therefore freedom is within a set boundary or context. An example of such a context or boundary would be God’s commandment given to humanity to not eat the forbidden fruit, and if humanity does eat the fruit, there will be consequences, which is death. 

In this analogy, it does not deny that human liberty within the context given in morality cannot exist. Humanity still has the ability to obey, manipulate, or completely disobey the commandment. However, this does not diminish the original authority behind the laws that comes from morality and the consequences that naturally follow from disobedience.

The analogy serves to demonstrate that a certain context is needed in order for liberty to function properly, without becoming something absolute and without accountability. God’s commandment restricts humanity from eating the forbidden fruit, however, humanity still has the liberty to explore other actions and opportunities. In this respect, by the nature of God’s commandment, human freedom is being denied in respects to eating the forbidden fruit, and if humanity chose to disobey, consequences will follow after. If there was no context or boundary, humanity would be free to do anything, without restraint and without punishment, and this would apply to any human action being valid and without consequences, if there were no given law. If this were the case, there will be chaos.

This is the same concern that Justice Scalias argues. If morality no longer is a relevant issue in determining legislation, and the right to liberty is the stronger determinant, then the legislation process is shrewd because most laws would conflict with the 14th Amendment. If liberty overpowers morality, then all laws are void and useless, since all laws are designed to constrain freedom or liberty, and as a result, there will be no punishment or order to any action, if absolute liberty prevails. Therefore, to remove morality as a bases to create laws is idiocy, since morality proceed laws; laws are dependent on a higher transcendent, unchangeable, unbiased, set of moral laws. Furthermore, laws by nature, are restrictive and intrusive, since they are suppose to represent a third party analysis of a conflict or view. In this definition of what morality and law is, results in liberty being denied constantly, for the purposes of providing accountability.

Interpretation of the Bowers v. Hardwick case

Revisiting this case from the perspective that moral disapproval of the citizenry is a sufficient reason for legislating and the plead for liberty is not relevant, then there will be no problem with the decision made by the Supreme Court to uphold anti-sodomy criminal statute laws. If sodomy is seen as immoral by the larger audience, then the Supreme Court has the right to heed to moral principles and act accordingly in response to it. The plead for the right to liberty, specifically privacy, cannot be used to defend against anti-sodomy laws, because if the Supreme Court were to allow sodomy and disregard the moral disapproval of the citizenry, the Supreme Court would also have to carry out this same verdict by allowing bestiality, pornography, incest between adults, polygamy, and other issues involving private acts of liberty. Therefore, in this case, it plays out, that morality cannot proceed after liberty, however, the opposite needs to be in effect in order for there to be coherence and accountability, which morality and law provides. Without morality, social laws are useless, and anything goes, without a system  that provides accountability and responsibility.

The Issue of Liberty

This issue is truly reduced down to the tension between (moral or social) laws versus fundamental rights to liberty. Both are very important and delicate things to take seriously, however, if one cannot distinguish the priority that laws have over liberty, then there will be a lot of headaches, since by definition, laws are the anti-thesis to liberty. The relationship between liberty and law needs to be in this respect, law or morality always has to proceed liberty. The concept of liberty is misunderstood to being something absolute, that is to say, one can do anything one pleases. However, this alternative where liberty has no constraints will lead to chaos because there is no boundaries to keep accountability. The ideal relationship between morality and liberty is when morality proceeds liberty. In this respect, there will be accountability to the use of human liberty. Therefore, issues involving whether the moral approvals or disapproval of the citizenry on a certain subject would be a valid reason for government to legislate because morality and law needs to supersede liberty as to maintain order and accountability. Likewise, when God told humanity not to eat the forbidden fruit or else death would result, therefore, when God gave this commandment; he provide a boundary for human freedom so that there will be proper accountability. Therefore, liberty cannot supersede morality, instead, the opposite must be true in order to maintain order and coherence. Therefore, what Justice Scalias argues holds true: if morality no longer is a legitimate reason for government legislation because the fundamental right of liberty is superior, then the constitution, the Bill of Rights, and all laws would be void because all laws constrict liberty.


To conclude, Justice Scalias’ argument is that the issue of liberty in the 14th Amendment as a fundamental right is irrelevant to the issue of whether morality plays a role in legislation hold because morality or laws have to proceed liberty in order for the relationship between the two to have coherence. Furthermore, the proposition that the Lawrence v. Texas presents about removing the need for the moral perspective to hold weight in government legislation because of liberty and privacy being intruded or restricted does not diminish the need for morality to be taken into account for making laws. Also, if liberty is truly at stake and if liberty is more valuable or proceeds morality, laws become pointless and oxymoronic, since all laws restrict liberty and freedom, therefore, if liberty truly holds more true or more valuable than the need for law and morality, then anything will be permissible, since all things will be interpreted from a subjective, individualistic, perspective, and if that were the case; it would be chaotic. Therefore, to conclude, morality is a valid reason to incite government concern.

Date:  4/13/2013

Philosophy 110

Instructor: Sarah Braasch

Re:  Perry v. Brown


Based on the background information provided concerning the legality of gay marriage as a sufficient reason for the government to act, there is none. The Supreme Court is the ultimate authority to which laws are passed, therefore, if the Supreme Court is against a specific action or for a given action, their judgement is final regardless of societal disapproval or moral conflicts. However, the Supreme Court has not defined the specificity of whether marriage is limited between a man and woman or if it is permissible for individuals of the same sex, all they have offered is that marriage is a fundamental right of an individual, but the lack of a clear definition leads to conflict since the Supreme Court has not created an air-tight definition. Therefore, the side that is against or for gay marriage has no standard or measurement to justify whether gay marriage is constitutional or unconstitutional, since the their arguments stem from moral disagreements and not by any substantial legal grounds. Hence, the government cannot grant a ban or approval on gay marriage because both parties have no clear grounds on what constitutes marriage for which to argue. 


The topic of whether gay marriage is constitutional arose from Prop 8, which was a collective effort of society to define marriage as between a man and a woman. This issue later was brought to the Supreme Court, in that time, Vaughn Walker proposed that Prop 8 was unconstitutional since conflicted with the 14th Amendment, which states that government cannot infringe upon rights of life, property, and liberty without due process of law. Vaughn Walker used relevant cases such as Perry v. Brown, which was an example given of whether the government had a legitimate right to infringe upon individual rights to marriage regardless of sex. Also, he tied it in with the Lawrence v. TX, which exercises the example that the Supreme Court is not interested in settling moral disapproval of the majority of the citizens, such disputes or concerns, are not sufficient for the government to act upon. 

Furthermore, the Supreme Court in this case, also ruled that when two individuals who are of age, decide to participate in sexual recreation in a private setting; the government has no desire or grounds to step in and dictate or impose moral approval or disapproval of the majority upon them, since it is a private affair, the government’s jurisdiction does not hold effect in this context. With these past court case examples, Walker argues that the government cannot declare Prop 8 constitutional, since it conflicts with the idea that marriage is a fundamental right of an individual. Walker goes on to defend and argue that both cases from Lawrence v. Tx and Perry v. Brown are similar, specifically, same sex marriage is a private affair such as sexual recreation between two individuals, thus, the government does not have appropriate reasons or interest to intrude on this matter. The only reason the government would intervene in this case, would be solely on moral disapproval, but the case from Lawrence v. Tx ruled that morality is not a sufficient reason for government intervention, and the only sufficient cause for government to intervene is when fundamental rights are being violated.


The main problem with Vaughn Walkers argument is that his argument by analogy is irrelevant to the actual problem at hand, which is what is marriage? This definition must be given by the highest authority in America, which is the Supreme Court. Therefore, whatever they say on the matter is law and is final, regardless of moral disputes or majority disapproval. However, the Supreme Court has not provided a clear and unambiguous definition of marriage, they have only disclosed that marriage is a fundamental right to all individuals, nevertheless, the question of what is marriage is escaping.

Here is an analogy of what the situation really is like: In a particular woodland area, there exists a people of archers, ruling them is one body of Master Archers who embody the ideals and laws that govern the art of archery and their authority is sovereign, that is to say, whatever they declare as valid or invalid for archery is law regardless of subjective disagreements on the matter. One day, two archers has a dispute among who has hit the right target, one archer by the name of Yotairen argues that the target must be hit by an arrow with red and blue feathers, and no arrow with the same colored feathers are allowed to hit the target. The other archer, by the name of Jijian, argues that a target can be hit by arrows of the same colored feathers, since it is based on personal preference of the archer and mere subjective disapproval about the matter is not adequate to say otherwise. They brought this case before the Master Archers, one of the Master Archers by the name of Wuzhi, reprimands the two archers and says: “The Master Archers have already declared that any archer has the right to hit the target, furthermore, mere personal disagreement on this matter is not sufficient enough to override this law, since this is the intrinsic right of an archer.” One outsider who was visiting the the woodland area by the name of Zhihui, asks Wuzhi a question, “What is the target?”.

The argument in the analogy can be summed up in this respect: 

1. The definition of marriage, whether it is only between a man and a women or if it is also open to individuals of the same sex, has not been clearly given by the Supreme Court.

2. If a clear definition of marriage has not been given by the Supreme Court, specifically, whether it is restricted between a man and a women or if marriage is opened also to individuals of the same sex, then the issues involving whether marriage is only between a man and a women or open to same sex marriage cannot be resolved.

3. The Supreme Court has not clearly defined what constitutes marriage.

4. Therefore, the issues involving whether marriage is only between a man and a women or open to same sex marriage cannot be resolved.

Since the Supreme Court has made the definition of marriage unclear, when the States need to exercise whether gay marriage is marriage or not, they do not have a clear understanding to which to exercise authority on the matter, therefore, the issue doesn’t get solved on the State level, thus, it will return to the Supreme Court. It is crucial, therefore, since the Supreme Court already stated that marriage is a fundamental right, for them to also provide a concrete definition of what marriage is in order to avoid confusion and conflict. The argument presented in Lawrence v. Tx, completely avoids this eminent and important issue of what marriage truly is; the avoidance cannot be tolerated since marriage is a fundamental right of an individual, it is imperative to truly give marriage justice by defining it well and throughly.


To conclude, the argument of whether gay marriage is permissible cannot be disclosed until the Supreme Court issues a specific description of what marriage really is. Therefore, arguments that are for or against gay marriage have no solid material to argue from aside from subjective and moral disagreements. So if the issue is to be disclosed of whether gay marriage is a fundamental right or if its not, solely depends on the jurisdiction of the Supreme Court of what constitutes marriage. Only and until the Supreme Court does so, can the dispute of whether marriage between the same sex is allowed can be decided.

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