No Room for Moral Sentiment

In January, the United States District Court for the Northern District of Oklahoma released its ruling in Bishop v. United States, declaring Oklahoma's legal definition of marriage to be unconstitutional.  As part of his constitutional analysis, Judge Kern determined that homosexuals are a non-suspect class, and therefore the Oklahoma law must be reviewed merely for "rationality."  This standard requires the court to uphold the law "if there is any reasonable conceivable state of facts that could provide a rational basis for the classification" that the law draws between citizens.  Copelin-Brown v. N.M. State Personnel Office, 399 F.3d 1248, 1255 (10th Cir. 2005).  (This is in contrast with an earlier decision invalidating a similar law in Utah, in which the court reasoned that any legal barriers to same-sex marriage is a classification based upon sex, and therefor the law must be subjected to intermediate scrutiny.)

Judge Kern then considers and rejects possible justifications for the discriminatory law, including "promoting morality," which was not even argued by the defendants.  Judge Kern writes, "moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law."  For support, he cites Lawrence v. Texas, 539 U.S. 558 (2003), the U. S. Supreme Court decision striking down Texas's anti-sodomy law: "[T]he 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.”  Judge Kern sums up by saying that "moral disapproval" is not a permissible justification for a law.  No doubt, such a view would seem perverse to Sir William Blacksone, who wrote: "Law is is the embodiment of the moral sentiment of the people."

I immediately thought of Judge Kern's words, this week, when I read the news story that Los Angeles has "banned the use of bullhooks, pitchforks, baseball bats and other goads that circus trainers use to control elephants and other exotic animals."  City Councillor Paul Koretz, who voted in favor of the ban, called the use of bullhooks "inhumane and unhealthy."  By "inhumane," he does not mean that humans are being harmed in any way, but that humans are behaving in a manner in which they shouldn't.  By what standard, you may ask?  Well, by Councillor Koretz's own sensibilities, and we will presume by those of his constituents.  We might go so far as to say the use of bullhooks goes against the moral sentiment of the people.

If Judge Kern is correct, then how can such a law have any legitimacy?  The same goes for all laws against animal cruelty, including Oklahoma's ban on cockfighting, approved in 2002 by 56 percent of the voters.  Since moral sentiment has been cast into outer judicial darkness, what is the permissible justification for such laws?  With no apologies to PETA and Ke$ha, elephants and roosters are property without rights of their own.  What is the rational basis for a law that interferes with a person's discretion over his own property if "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"?

It is worth noting that Oklahoma's law defining marriage as being between a man and a woman lacks the coercive force of anti-cruelty laws.  Oklahoma's definition of marriage does not prohibit conduct by private individuals -- a same-sex couple may still have a "marriage" ceremony and hold themselves out as being married.  The cockfighting ban, however, imposes criminal penalties for violating the law.  It is difficult for me to understand how the citizens of Oklahoma can fine and imprison private individuals for engaging in behavior they just don't like, but those same citizens cannot prevent their own government from granting official recognition for behavior they just don't like.

Maybe Judge Kern can explain it.