Sexual Conduct/Morality

Question 1

1) Paris:

Answer 1

st can regulate (under RB test) based on morality/decency/norms and unproven empirical assumptions

a) H: morality is a con’l RB for restrict private obscene material
b) Even after Roe, cluster of rights invoking higher scrutiny (compelling interest) doesn’t extend to any conduct consenting adult does in private)

Question 2

2) Bowers:

Answer 2

reinforces Parisst reg can be based on moralityno con’l right to engage in private, consensual activity (in this case: homo sodomy) that majority/legis thinks is immoral

Question 3

3) Lawrence v TX:

Answer 3

Majority unwilling to say that morality legislation is impermissible, but holds that private, consensual, sexual activity cannot be prohibited based on morality (overturning Bowers)

a) It seems to be an RB standard of review, but why isn’t morality legislation a rational basis for this anymore? Kennedy doesn’t explain, but it seems like Lawrence is trying to make an EP argument under the guise of DP
b) What about bestiality/polygamy/dwarf throwing? St can still prohibit on basis of morality! Why?
iii) FT: I think this is about undebateable human norms; bestiality is conventionally/universally immoral; not homosexuality; maybe in an earlier period, homosexual was seen as universally immoral and thus morality was a rational basis, but Kennedy is aware of the changing social norms (“relevance of public opinion” debate)