Daniel F. Piar


In recent years, the Supreme Court has taken inconsistent approaches to the question of whether morality can be a legitimate government interest sufficient to survive constitutional review. This article identifies three such approaches: (1) cases where morality is not considered as a legitimate government interest; (2) cases where morality is a legitimate government interest; and (3) cases where the Supreme Court has substituted its own moral judgment for those of the state actor under review. None of these approaches is wholly satisfactory. This article will argue that, in most cases, deferential review of morality-based state action fosters moral diversity, which is a social good to be sought through the law. In cases of certain minorities, however, a more searching review is justified, and the expression of public morality should be subordinated to the protection of minority rights.



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