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Morality, Politics, and Law

by Professor Will Huhn on June 25, 2009

in Constitutional Law,Wilson Huhn

     With yesterday's admission of an affair, Governor Mark Sanford joins a long list of politicians who, it turns out, have not been faithful to their marriage vows.  Coupled with his disappearance over Fathers Day weekend, these events must be deeply hurtful to his family.  The public disclosure and widespread coverage of his behavior only compounds the misery.  What should be the proper relation between morality, politics, and law?  I will offer some opinions which I anticipate my readers will improve upon!

    First of all, I don't look to politicians in general as role models for me or my family any more than I would look to business executives, rock stars, or sports figures.  Many of those people travel extensively or have jobs that keep them away from their families for long stretches, and it is only natural (if unfortunate) that they find other objects of their affection.  They are already devoted to becoming rich or famous or powerful – they don't have time to fix dinner or coach softball or take the kids to the dentist.

     Accordingly, the concept of "family values," while central to my life, has never resonated with me as a reason to vote for anyone.  It is nice when politicians like Barack Obama or Mitt Romney have happy family lives – in my opinion they are beating the odds – but it is not a good reason to elect them to public office.  People who desire power, who are good at wielding it, and who have learned how to bend people to their will often don't make the best mothers and fathers or husbands and wives.  Even less relevant is the "picture perfect" family.  When a political family is presented as not simply warm and caring but as physically attractive we should all be checking our motivations.  Are we voting for people who will efficiently and effectively promote the public interest or simply people whom we want to look at?

     What about "family values" as a political principle?  What is the proper relation between morality and law?  Here we begin to tread on constitutional ground.  One of the key questions in the Right to Privacy debate is:

Is morality, in and of itself, sufficient to justify a law?

     The answer to this question was the principal factor distinguishing the majority opinion of Justice Kennedy from the dissenting opinion of Justice Scalia in the case of Lawrence v. Texas (2003).  In that case the Supreme Court ruled that traditional notions of morality condemning homosexuality were not sufficient to justify a law making gay sex a crime.  In considering whether or not gays and lesbians may be imprisoned for having sex, Justice Kennedy wrote:

The fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.

     Justice Scalia took precisely the opposite position, stating that constitutional rights consist solely of rights which are

deeply rooted in this Nation's history and traditions.

     Justice Kennedy's counter-argument was as follows:

History and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.

     Justice Scalia believes that morality by itself is sufficient to justify the adoption of a law.  Like Justice White in the case of Bowers v. Hardwick (1986) which Lawrence overruled, Justice Scalia would argue that all law reflects moral judgments, and that the moral beliefs of judges should not trump the moral beliefs of the majority of the people.  Justice Kennedy's approach to this question reflect libertarian philosophy – while it is true that all laws reflect moral concerns, to be valid a law must also be supported by some reason other than morality – that morality by itself is not sufficient to justify legal restraints – that the government may not prohibit people from engaging in conduct merely because the majority of people do not approve of the conduct.  Instead, before behavior may be made illegal, the behavior must cause some objective, concrete harm that the government is attempting to prevent.

     I think that these ideas are central to the debate over "family values."  We all aspire to have strong families and to live up to our responsibilities to our loved ones, but can we further those goals either by voting for people who have good families or by enacting laws that enforce how we think other people should live?  Coming back to Mark Sanford, is he guilty of a crime?  When politicians lie under oath or sexually harrass subordinates or misappropriate public funds to carry on an affair it is perfectly clear that they may be held criminally liable.  But what if all that they are guilty of is adultery?  Adultery is obviously grounds for divorce, but may the government make it illegal?  Most everyone would agree that incest, prostitution, and polygamy cause harm and may therefore be made the subject of a criminal statute, but South Carolina law -"Offenses Against Morality and Decency"  – also punishes adultery, fornication, and "the abominable crime of buggery."  Are those laws constitutional?  More generally, may "family values" form the basis of the criminal law?


susan eustis June 25, 2009 at 3:12 pm

family values work across all lines of business. People can be good parents and bad parents in every occupation. the fact that we aspire to be good parents no matter what our occupation is a desirable thing. Politicians are leaders and we can hold them to the same standards we value.

Dan S. June 25, 2009 at 9:51 pm

RE: "Coming back to Mark Sanford, is he guilty of a crime?"

Probably not, unless such behavior specifically violates a 'work rule' in his employment contract with his public employer. In that case he would be subject to disciplinary action that may or may not include criminal violations of state statutes.

AND: "More generally, may "family values" form the basis of the criminal law?"

No; with the notable exceptions you noted above that clearly cause harm.

As an endthought, I wonder if Mr. Sanford included a smiling family photo with his last set of campaign literature? Here in NE Ohio it seems obligatory to include the happy family photo if one seriously hopes to win a political race at any level. After all, everybody knows that good teeth and neat hair are the two most important qualities of effective leadership.

Professor Will Huhn June 26, 2009 at 7:22 am

It is all so sad. I cannot imagine the pressure of having to present oneself as having a perfect marriage and perfect family in the spotlight of the national media.

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