The Rick Warren mess led me to think again of Lawrence v. Texas, including this controversial tidbit:
The rationale of Bowers does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens came to these conclusions:“Our prior cases make two propositions abundantly clear. First, 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; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.”
Justice Stevens used laws against miscegenation as an example of the first, which seemed to me suspect since such laws were problematic because of the enumerated equal protection provision. His dissent focused on that matter, true, but it was a bit too easy. The cite more aptly can be said to show that a constitutional right does not fall simply because of tradition. Determining what said right is in a given case, especially when tradition is one way to discover this in the first place (e.g., "liberty" rights pursuant to due process*) is more tricky.
This citation was used by Scalia and others to argue that the Lawrence Court now held that morality alone could not be accepted as a legitimate state interest. Since morals, at least public morals, has traditionally been a major factor in the "police power," this would have been a significant change. One that could go much further than this particular area. And, especially if "morality" is interpreted to mean private morals, this very well might not too bad of an idea.
But, this really is not the issue here. What the test really says is that traditional morality ["traditionally viewed"] alone is not sufficient. The idea that it always was deemed immoral by a certain "governing majority" [a telling point] is not enough to criminalize a certain activity. [The opinion also made clear that arguments about what "always" occurred is also open to question.] There very well might be a reason in the current day to uphold something on morals grounds. But, you have to make a case, not just cite tradition.
The opinion furthered this suggested interpretation by noting that the meaning of "liberty" changes over time, the last fifty years in particular being of relevance. It is however hard to imagine a system in which "morality" is never a factor, since it involves such things as rightful conduct secured by a myriad of laws. The word does often suggest private decisions that many feel "cannot be considered a rightful exercise of legislative authority." And, Lawrence does tell us that one's "own moral code" should not be pushed "on the whole society through operation of the criminal law."
But, note how that last citation focused on actions "overriding fundamental rights," not necessarily concluding that any law focused on "moral concerns" is illegitimate. The lesson is that private morality and tradition alone cannot be the test, especially when fundamental liberties are threatened. There can be certain "moral" fundamentals (e.g., equal treatment) that are well accepted and fairly treated as "public" in nature. The alternative surely is not made impossible under Lawrence v. Texas.
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* Again, the seeds of this can be found long before Dred Scott came to Lincoln's notice:
There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof the government was established. An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power, on which it is founded.
Likewise, "strong aversion against" such laws by justices alone was not the test. It was [is] a factor, but that was the case across the board.