Evolving Objective Standards: A Developmental Approach to Constitutional Review of Morals Legislation

This Note argues that the Supreme Court’s recent jurisprudence regarding morals legislation mirrors the findings of empirical research on moral and psychological development. Specifically, the Supreme Court upholds morals legislation only if it is justified by stage five reasoning. Part I examines significant Supreme Court cases related to morals legislation over the last 50 years and argues that the Supreme Court has consistently upheld morals legislation that is justified by stage five reasoning, while consistently striking down as unconstitutional morals legislation that is not. Part II argues that a developmental approach to constitutional review of morals legislation, while consistent with many aspects of the common responses to morality and the law after Lawrence, yields significant advantages over those approaches. Most significantly, Part II argues that a developmental approach lends reliability and determinability to the use of evolving standards in constitutional review of morals legislation, while still maintaining primary state control over public health, safety, and morals. Part III applies this framework to questions raised by Justice Scalia’s dissent in Lawrence, arguing that the Court is indeed likely to strike down certain laws as unconstitutional while others appear to pass developmental and constitutional muster.