Morality as a Legitimate Government Interest

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

A Welfare State of Civil Rights: The Triumph of the Therapeutic in American Constitutional Law

This Article examines the influence of the therapeutic culture on the modem constitutional law of civil rights. The therapeutic culture is defined as one in which the central moral question is individual fulfillment. That culture has sprung up to replace older cultures such as Protestantism and classical republicanism, which are no longer capable of appealing to a nation as diverse as the United States. Instead of asking whether individuals or the nation conform to some external moral system, the therapeutic culture asks whether individuals are happy or fulfilled. This Article demonstrates that the therapeutic culture has had a significant effect on the constitutional law of civil rights. Drawing on an interdisciplinary approach, including history, sociology, and law, it offers a reading of some of the most important civil rights cases of the last hundred years to demonstrate how concepts of personal fulfillment, such as emotional comfort and psychic integrity, have been used to draw the boundaries of state action and declare the meaning of the Constitution. While this development has led to the recognition of many new rights, it also poses threats to liberties that are endemic to the therapeutic culture. These include the aggrandizement of state authority in the name of therapy and the danger of dependence on the courts rather than ourselves as agents of therapeutic change