Morality And The Law: A Case Study In Hawaii
Chaim Dovid Zwiebel

by Chaim Dovid Zwiebel

In 1992, it may have been "the economy, stupid" -- in the immortal if inelegant words of then - candidate Bill Clinton's campaign manager James Carville -- but today, it would appear from a cursory glance at the daily headlines, fiscal issues have yielded their place atop the chart of America's public concerns. The new chart-topper is morality.

The list of New York Times page-one stories over the past few months reads like what once might have been a "Best of The National Enquirer" brochure. Accusations of harassment against the President. Infidelity at the highest levels of the military. "Coming out" in sitcom prime time.

Nor have the headlines been limited to allegations and revelations about the personal conduct of prominent individuals; they have also focused on the battles raging in legislatures and courts over the proposed banning of such practices as partial birth abortion, assisted suicide, on-line pornography and cloning. Although each of these issues presents its own nuances and complexities, the essence of the debate is common to them all: To what extent should the law in a secular democratic society reflect or reject commonly held notions of public morality?

Yet another context in which that same question arises is the debate over the ban against "same-sex marriage", the legality of which is currently being considered by the Supreme Court of Hawaii. In an earlier ruling, the court concluded that Hawaii's refusal to sanction marriages between two people of the same gender raised legal questions under the state constitution's mandate of equal protection, and that accordingly only a "compelling state interest" -- the most demanding of legal criteria -- could legally justify such refusal.

Following are excerpts from an amicus curiae (friend of the court) brief submitted by Agudath Israel of America -- for the presentation of which I was specially admitted to practice before the Hawaii Supreme Court -- detailing our view on the critical relationship between secular law and morality:

Although this appeal raises several important questions, amicus curiae Agudath Israel of America will focus herein exclusively on what it considers to be the core question involved in this case: Does the broad social moral consensus reflected in Hawaii's marriage laws itself furnish a compelling state interest that justifies Hawaii's refusal to recognize "same-sex marriages"?

There can be no question that "[t]he long tradition of marriage, understood as the union of male and female, testifies to political, cultural, religious and legal consensus." Storrs v. Holcomb (N.Y. Sup. Ct. 1996). That consensus is reflected in the enactment last year, by landslide margins in both the U.S. House of Representatives and the U.S. Senate, of the Defense of Marriage Act (defining the terms "marriage" and "spouse" for purposes of federal law to exclude same-sex unions, and allowing states not to recognize as marriages same sex-unions treated as marriages by sister jurisdictions). It is reflected in the growing movement in many states specifically to declare that "same-sex marriages" are offensive to their public policy. It is reflected in opinion poll upon opinion poll, in which Americans generally, and Hawaiians specifically, overwhelmingly oppose the recognition of "same-sex marriages".

There can further be no question that when society arrives at such a clear consensus of right and wrong, of what is morally appropriate and what is not, government has an interest in the preservation of laws that reflect the social moral consensus. For example, in Bowers v. Hardwick (U.S. 1986), the Supreme Court expressly found that "the law.. is constantly based on notions of morality", and that "majority sentiments about the morality of homosexuality" furnish a sufficient basis to uphold anti-sodomy laws against due process attack. In Barnes v. Glen Theatre (U.S. 1991), the Court concluded that a "public indecency statute furthers a substantial interest in protecting order and morality," thereby shielding it from free speech attack.

Indeed, although the Supreme Court has not yet had occasion specifically to address the issue, there is ample jurisprudential basis to label the government's interest in preserving social morality "compelling". The point was articulated most forcefully, and most famously, by the English jurist Lord Patrick Devlin in his treatise The Enforcement of Morals (1965). Commenting generally on the role of morality in a society's laws, Lord Devlin emphasized the enormous interests at stake:

"If men and women try to create a society in which there is no fundamental agreement about good and evil, they will fail; if, having based it on common agreement, the agreement goes, the society will disintegrate. For society is not something that is kept together physically; it is held by the invisible bonds of common thought. If the bonds were too far relaxed the members would drift apart. A common morality is part of the bondage. The bondage is part of the price of society; and mankind, which needs society, must pay its price.

"There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its government and other essential institutions."

The laws of marriage, too, are founded on notions of social morality. Judge Ferren's opinion in Dean v. District of Columbia (D.C. App. 1995) makes the point well. Citing as an example the District of Columbia's law against "a man's marrying his son's wife or a woman's marrying her stepfather," Judge Ferren pinpointed social morality as a self-sufficient basis for consanguinity laws that prohibit marriages among certain relatives even though their unions pose no dangers of biological inbreeding. "The consanguinity provision... reflects taboos -- indeed moral judgments about improper marriage relationships -- that transcend genetic concerns."

If "taboos" and "moral judgments about improper marriage relationships" by themselves furnish a sufficient state interest as to justify government's refusal to accept the "marriages" of certain non-blood related relatives, they also furnish a sufficient state interest as to justify government's refusal to accept the "marriages" of persons of the same gender. And, conversely, if a society's marriage laws are understood to embody distinctions between marital relationships that are morally acceptable and those that are not, any decision in this case that legalizes "same-sex marriages" will perforce send a message of profound moral revolution all across the globe.