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Morals Legislation and the Establishment Clause

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Title: Morals Legislation and the Establishment Clause
Author: Loewy, Arnold H.
Abstract: In rejecting the argument that morality is an insufficient basis for a law, the Supreme Court, in Bowers v. Hardwick, held: "The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed." In rejecting Bowers, a very different Court, in Lawrence v. Texas, countered: "[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 ... : The principal thesis of this Essay is that on this point: Lawrence was right and Bowers was wrong. The source of my conclusion is the Establishment Clause, a clause not mentioned by the opinions in either case. Others have written about the interrelationship between morals legislation and religion, but none have attempted to set a standard for the Court to employ whenever it is faced with such a case. In the course of this Essay, Professor Loewy develops such a standard.
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Date: 2003

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