Randy Barnett has an interesting post up at the Volokh Conspiracy, giving a persuasive argument about why legislative judgments of morality are not a particularly good basis for legal punishments or restrictions. Barnett makes the very interesting initial assertion that: “A legislative judgment of ‘immorality’ means nothing more than that a majority of the legislature disapproves of this conduct.” Responding to a critique of this position by Rick Garnett, Barnett then elaborates:
Consider the claim that homosexuality is immoral. I strongly disagree. Now what? In a contest between a majority of state legislators and me and those who agree with me, what privileges the legislature’s judgment of morality? In what way are they experts? How does being elected to the legislature qualify them to make these judgments? Do they hold hearings on the morality of homosexuality and offer reasons for their conclusions? Or do they just press a button and register their vote? Most importantly, how can we assess the merits of their claim? If we cannot, then in reality they can prohibit whatever they want (and for whatever reason they want). No matter how objective morality may be, any such doctrine of constitutional law is recipe for tyranny.