Pornography, Morality, and Harm: Why Miller Should Survive Lawrence
File: 02-DIONNE-Revised.doc Created on: 3/12/2008 1:29 PM Last Printed: 3/12/2008 1:34 PM 2008] 611 PORNOGRAPHY, MORALITY, AND HARM: WHY MILLER SHOULD SURVIVE LAWRENCE Elizabeth Harmer Dionne∗ INTRODUCTION In 2003, a divided Supreme Court in Lawrence v. Texas1 declared that morality, absent third-party harm, is an insufficient basis for criminal legis- lation that restricts private, consensual sexual conduct.2 In a strongly worded dissent, Justice Scalia declared that this “called into question” state laws against obscenity (among others), as such laws are “based on moral choices.”3 Justice Scalia does not specifically reference Miller v. Califor- nia,4 the last case in which the Supreme Court directly addressed the issue of whether the government may suppress obscenity. However, if, as Justice Scalia suggests, obscenity laws have their primary basis in private morality, the governing case that permits such laws must countenance such a moral basis. The logical conclusion is that Lawrence calls Miller, which provides the legal test for determining obscenity, into question.5 ∗ John M. Olin Fellow in Law, Harvard Law School. Wellesley College (B.A.), University of Cambridge (M. Phil., Marshall Scholar), Stanford Law School (J.D.). The author thanks Professors Frederick Schauer, Thomas Grey, and Daryl Levinson for their helpful comments on this Article. She also thanks the editorial staff of GEORGE MASON LAW REVIEW for their able assistance in bringing this Article to fruition. 1 539 U.S. 558 (2003). 2 Id. at 571 (“The issue is whether the majority may use the power of the state to enforce these views on the whole society through operation of the criminal law.
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