Can (and Should) We ‘Legislate Morality’?
In this paper, I would like to argue that a search for
neutrality – an effort to divorce law and morality – is neither
possible nor desirable. Every form of government, whether by
its action or inaction, encourages certain forms of behavior and
discourages others. The only realistic question to ask is, not
whether law shapes morality, but how a particular
legal system will shape morality.
At the same time, this does not mean that there are no limits on
the capacity of law to shape morality. There are various
reasons, both of principle and prudence, why the attempt to
foster morality through law should be kept from overreaching
itself. Law can be endangered not only by libertarians, but
also by moralists.
The Power of Law: Can We Legislate Morality?
Contemporary liberals argue that it is not possible to legislate
morality, giving both theoretical and practical reasons. First,
virtue is a matter of free will, and therefore it cannot be
coerced, so the attempt to coerce people into being virtuous is
self-contradictory. Second, it is not possible to enforce legal
restrictions, as the example of Prohibition demonstrates, and so
attempts to enforce morality are unrealistic.
On the first point, it is absolutely correct that virtue cannot
be “compelled.” It is not, strictly speaking, possible to
legislate morality. Morality does not consist merely in certain
actions, but in habits, dispositions of the will that incline us
to act readily in a certain way. The coercion of law does not
reach the soul, but only external behavior.
Those moralists, therefore, who think that they can literally,
by law, "impose their morality on others" are mistaken.
But the most thoughtful advocates of legal “regulation of
morality” do not make such a claim. According to them, good
laws do not impose morality as such, but rather help to create
or foster conditions that facilitate the formation
of good habits. Laws accomplish this goal in two ways. First,
the law can, by its regulation of external behavior, reduce the
frequency of certain acts, which affects habits. Second, law
contributes to the formation of moral ideals. I will try to
explain these effects in the following section, drawing
especially on arguments made in Harry Clor’s classic book,
Obscenity and Public Morality (University of Chicago,
1969). (I do not agree with all of Clor’s positions – I think
he is sometimes too inclined to compromise with liberal
principles of free “speech” – but I think his analysis of the
effects of obscenity and law is very insightful.)
Law, Morality, and Habits
One simple effect of laws prohibiting particular actions is to
reduce their frequency, especially by creating disincentives to
act in a certain way: e.g., formal legal punishments, such as
prison time or fines, and informal punishments, such as the
public embarrassment of legal convictions or the simple fact of
being involved in any legal proceedings at all. Even
Prohibition, for example, reduced the net consumption of alcohol
in American society. Pornography laws reduce consumption of
pornography and abortion laws reduce the instances of abortion.
Of course, there are instances where a given law fails to
prevent or punish the prohibited action – in fact, that is true
of virtually all laws. But who would say that laws dealing with
murder, rape, or theft ought to be repealed simply because they
are not always successful? And it is also true that laws
may have no effect if there are absolutely no efforts to enforce
them. But the problem in such a case would be with the failure
to enforce, not with the law itself.
The reason for the success of the law in reducing instances of a
given form of behavior is very simple. Take the example of
obscene publications and films. There are at least two groups
of people in society who will not be affected substantially by
legal regulation. First, there are some people whose actions
are already firmly in accord with the moral principle underlying
a given regulation of morality (perhaps due to their temperance
or self-control in sexual matters, perhaps due simply to
temperament). There are others who are so opposed to such a law
that they will evade it successfully (since there will always be
a black market for items to which human nature is strongly
inclined). Liberal arguments against regulation of morality
tend to focus on these kinds of citizens and emphasize that
legal regulation of morality affects them very minimally.
But this approach ignores the existence of others – usually many
more people – whose wills are neither firmly committed nor
firmly opposed to the moral principle embodied in a given law.
These include, among others, the people who indulge in
pornography but feel a sense of shame for doing so. (The
classic case was the college student who claimed to read
Playboy "because the articles are so good" or because of a
certain "aesthetic appreciation for the human form".) And it
includes people who know pornography is wrong and are even
willing to say so, but who find themselves on occasion giving in
to the powerful impulse to indulge in it. These kinds of people
stand to benefit from a law restricting obscene publications and
films. They are prevented from indulging in a vice, because the
law makes it harder to do so, and they are not so inclined that
they will make "heroic" efforts to evade the law.
Why does it matter that the frequency of a certain form of
behavior is reduced? After all, it could be argued that a
person who indulges in pornography “x” times can be just as bad
as the person who indulges in it “x + 5" times. The important
point, it will be said, is not the frequency, but the underlying
disposition which leads to the acts, whatever their frequency.
(Some might even argue that the fewer acts reflect, not moral
superiority, but heightened moral inferiority, in the form of
hypocrisy – refraining from action simply for fear of punishment
or what others might think.)
The case for the legal regulation of morality considers
reduction of the frequency of bad acts important more for its
indirect than its direct effects. For example, because obscene
material is not easily available and therefore some people do
not regularly indulge in it, these people do not form and
reinforce the habit of using those materials and the
habits that go with them (e.g., looking at women more as objects
of sexual self-gratification than as persons). Habits –
dispositions to act in a certain way with facility – are formed
by repeated actions. The more often we do something, the easier
it typically is to do it (other things being equal). That is
true on the physical level (if we swing a tennis racquet with
the correct stroke often enough in practice, we will be able to
do so quickly and with less difficulty in the middle of a game
of tennis) and it is also true on the moral level (if we make a
continuous effort to control our tempers even when provoked,
eventually we are able to do it with less strenuous effort).
Perhaps we can think of habits as channels or grooves
metaphorically "cut" into our character that direct our actions
in a certain way. The more we use and dig out and deepen those
channels, the easier the action becomes (again, other things
being equal – circumstances do have an impact).
In the case of pornography, it is not just the habit of reading
pornography itself that is at issue. It is, more importantly,
what pornography tends to reinforce: the habit of reacting more
easily and more strongly to sexual stimuli and the habit of not
exercising control over the desire for sexual gratification.
That habit influences not only our future reading of
pornography, but the very way that men look at women in general
(pornography being generally a male vice), and especially the
tendency to view them not as people but as objects for the
gratification of sexual desire. Of course, pornography is only
one of many elements of life that creates and reinforces this
bad habit. (In fact, I think an argument can be made that less
graphic forms of sexual suggestiveness play an even greater
role, since they are more tolerable, and therefore more
tolerated, and therefore more ubiquitous in society.) But the
fact that it is only one cause among many does not mean that it
is not an important factor, since it does have a natural and
strong effect of creating or reinforcing such habits, and it is
therefore worth proscribing.
Law and the Formation of Moral Convictions
There is also a second way in which law can help to create or
foster the conditions of morality. It can play a role in the
formation of citizens' moral convictions.
To understand this, it is important to attend to what may be
called a "sociology of moral convictions and beliefs." Moral
ideals can and should be arrived at by the effort of human
reason. That is ethics, a branch of philosophy. But human
beings are not simply isolated and disembodied intellects who
possess an innate knowledge of morality. They are social
creatures who live in communities, and they are creatures born
with potential abilities that need to be actualized or
For reasons noted by Thomas Aquinas (when he explains why
revelation includes some things knowable in principle by reason)
and Alexis de Tocqueville (when he explains why dogma is
most human beings are not capable of producing their own
comprehensive ethical theories. Indeed, no human being is
capable of doing it, simply on his own. Not only are we not all
Aristotles, but even Aristotle would not have been Aristotle
without Plato, who would not have been Plato without Socrates.
Moreover, even apart from individual variations in intellectual
ability, many human beings simply do not have the time and
leisure (in the original sense of the term) to develop their own
moral theories. The result, as Tocqueville notes, is that human
beings need dogma, authoritative guidance on the highest things,
such as the relation of man to God and to his fellow men.
Look around for a moment and ask yourself "where do most people
seem to get their moral ideals from?". For many people it is
their families and their churches. But families are not
completely autonomous and themselves typically depend upon some
other, broader source of moral convictions, so that just leads
us back to the same question in a new form: "where do families
get their moral ideals from?". Religion is an obvious and very
important source for many individuals and families, but it is
one of a variety of factors. That is seen most clearly in the
fact that oftentimes people of the same religion have different
moral ideals with respect to the same aspect of life. To take
an example from our own society, many of those in the United
States who call themselves Christians or Catholics hold sharply
opposed views of morality. Perhaps one way to formulate this
point is to say that some "American Catholics" are influenced
more by their Americanism than by their Roman Catholicism. But
this suggests, that in addition to family and faith, other
communities of which we are a part influence our moral views.
One of these is the political community.
James Madison notes in The Federalist Papers that human
beings are not simply autonomous in their formation of moral
The reason of man, like man himself is timid and
cautious, when left alone; and acquires firmness
and confidence, in proportion to the number with
which it is associated. When the examples, which
fortify opinion, are antient as well as numerous,
they are known to have a double effect.
Whatever the abstract capacity of human beings to reason
independently of others – and that capacity does exist, of
course – the ideas that people have, including their moral
ideals, are typically influenced by the many human beings around
them, in the various communities of which they are a part. Just
as there is a physical environment – including the air we
breathe without thinking about it – so is there a moral
environment from which we often absorb, as if by osmosis, the
general opinions of those around us.
The liberal tends to say that we are free to form our own moral
opinions, and he is right. But he also tends to ignore the fact
that most people are influenced, often even without realizing
it, by the prevailing opinions of the society of which they are
a part. Whether social opinions should influence
individual moral opinions may be a normative proposition to be
debated, pro or con – but that social opinions do
influence moral ideas is a simple fact.
Now the law is only one way in which society's "general
opinions" are expressed. To take only one example, the media
and the entertainment industry exercise enormous influence in a
similar way. But the law is one way, and a particularly formal
or authoritative way. It is society "going on record" as saying
that some forms of human behavior are frowned upon. The very
efforts of groups that oppose certain laws to get them taken
“off the books”, even when they are not enforced, is testimony
to the importance of law, as in the case of homosexual rights
groups who have asked courts to strike down sodomy prohibitions
that have not been enforced for a long time.
One powerful example from recent American history is civil
rights legislation. Laws such as the Civil Rights Act of 1964
were intended to prohibit certain acts (racial discrimination in
public accommodations, for example), and they achieved this to
some extent. But it is arguable that the more important effect
of the law was its educative effect. It was a solemn
national statement reaffirming the principle of racial
equality. And this law, in conjunction with other factors, has
contributed to the profound change in racial relations in this
country in the last generation. (And who would say that the law
was unnecessary or undesirable, simply because there were other
A society cannot avoid “legislating morality”, in the sense of
fostering or encouraging certain ways of living. Law in modern
liberal democracies, insofar as it does not explicitly
seek to shape character, may have its effects in more subtle
ways and over a more limited range of human qualities, but that
does not amount to "neutrality."
Another example of the relation between law and moral ideas can
be found in the proliferating programs of sex education in this
The character of such programs varies considerably, of course,
but some at least try to achieve neutrality by following the
"Joe Friday Principle": "just the facts, ma’m". Neutrality can
be achieved, some think, by presenting simply the facts, which
are "objective", and either not discussing values, which are
"subjective", or simply reporting various "value-positions" in a
neutral, even-handed way.
But the alleged neutrality of presentations based on the
fact-value distinction has been exploded many times. Again,
from a certain "sociology of knowledge" perspective, one must
ask what the effect of such programs on students will be.
Whether consciously or unconsciously, students will wonder why
it is that the "facts" are presented, but "values" are not. The
answer – it need not be the "logical" one, only the one that is
likely to be the actual one in many cases – is that we can
really know facts, but we can't really know values
(because they are “just” subjective opinions). That, of course,
is an extremely important position – one that is itself
decidedly not neutral. It encourages general scepticism
about an objective and intelligible moral order, and supports,
at least indirectly, views of moral relativism.
Of course, such programs are not purely relativist. Rape is not
mentioned as one "alternate sexual lifestyle," for example,
because that would be incompatible with liberal values of
tolerance and respect for the rights of others – and,
apparently, those liberal values are known with sufficient
certitude to make them authoritative. Masturbation is generally
presented as something perfectly normal and unobjectionable,
since it does not involve the one liberal sin of interfering
directly with the rights of others. Increasingly, homosexual
activity is described in considerable detail, without any moral
comment (though sometimes with actual emphasis on its legitimacy
as a form of sexual expression), putting it implicitly on the
same plane as other forms of sexual activity. My point in
mentioning these things is not to criticize them (though I
would). It is simply to point out that such programs can in no
sense be considered neutral. They tend to encourage some
attitudes and moral convictions about sexual acts, and to
The conclusion one ought to draw from this discussion is that
law cannot avoid creating and fostering conditions for the
formation of virtues and vices. If this effect of law is
inevitable, then we ought to exercise our reason to direct it,
rather than leaving it to chance.
That still leaves open important questions about when and how
this power should be exercised. Let me turn now to some
considerations which counsel moderation in the use of the law to
foster the conditions of morality.
The Limits of Law
Someone we might call "the moralist," impressed by the capacity
and even the inevitability of the character-shaping performed by
law, is inclined to use this power to accomplish high goals.
Sometimes stirred in his soul by the noble vision of classical
political philosophy, he seeks to make this world a better place
through political action. The purpose of political community
is, after all, to foster human excellence for the community and
its citizens. (One sometimes observes this tendency in
idealistic young college students who have just been through a
course in classical political philosophy, perhaps one that
contains more Plato and Aristotle than Thucydides and
The initial caution that must be made here is that it is not
possible for the law to "legislate morality" (see above). But,
beyond that, there is also a need to moderate political moralism
in various other ways. As one might (or, at least, should)
expect, the greatest historical exponents of moralism were
decidedly moderate moralists. We could develop this by looking
at Aristotle, but perhaps it will be even better to see it in a
Christian Aristotelian like Thomas Aquinas, since some people
argue that religion is a powerful force pressing us to adopt an
immoderate, or at least insufficiently moderate, moralism.
Let's begin by looking at Thomas Aquinas' answer to the question
"whether it belongs to the human law to repress all vices?".
He says that laws imposed on men should be in keeping with their
condition, for law should be (quoting Isidore) "possible both
according to nature, and according to the customs of the
country". This possibility is related to interior habit or
disposition (some things being possible for one who has a
virtuous habit that are not possible for others):
Human law is framed for a number of human beings, the majority
of whom are not perfect in virtue. Wherefore human laws do not
forbid all vices, from which the virtuous abstain, but only the
more grievous vices, from which it is possible for the majority
to abstain; and chiefly those that are to the hurt of others,
without the prohibition of which human society could not be
maintained; thus human law prohibits murder, theft, and
In one of the responses, he adds that the danger of imposing on
imperfect men precepts that they cannot bear is that "the
precepts are despised, and those men, from contempt, break out
into evils worse still."
There are several factors, then, which counsel moderation in the
use of law to repress bad habits. First, there seems to be a
natural inequality among men, some – relatively few – of whom
are virtuous, but the majority of whom are "not perfectly
virtuous." (This refers not only to the fact that most men have
significant vices, but also to the fact that, even when their
behavior is good, it is not based on a firmly rooted habit, but
is a form of Aristotle's quasi-virtue of continence).
Human law is framed for these many, and it should prohibit only
what the many are capable of abstaining from.
Second, in addition to this natural inequality, there are also
differences that arise from the particular features of a given
political community. As Isidore says, law also must be in
keeping with what is possible, given "the customs of the
country." If bad habits have deep roots in a culture, law is
not likely to be able to uproot them. In fact, as Thomas notes,
the precepts of such a law will be despised and the ordinary
citizens, unable to "take" such regulation, will break out into
worse evils. (An example of this might be the creation of a
"backlash" that would make the law worse than it might have been
if it had tried to do less.)
Better to aim lower, perhaps to restrict or limit certain vices
successfully, rather than try unsuccessfully to obliterate them,
and in the process make people despise the law (both the
particular law and law in general).
What this means is that there is a definite relation between a
given country's mores and which vices that country's law
is capable of repressing. The attempt to prohibit vices that
are deeply rooted in the community, i.e. vices to which many
citizens are deeply attached, is likely to be a failure.
Moreover, the difficulty of accomplishing such a task will
likely require greater harshness in the law. This is itself a
cost to be concerned about, since it may 1) aggravate the
resentment against the law (the particular law and the law in
general), 2) augment the coercive power of government and the
habit of accepting greater levels of coercive government action,
which is always subject to potential abuse, and 3) undermine the
kind of civic "friendship" on which a polity rests, the sense
citizens have that they are part of a community and not
merely subject to it.
This does not mean that laws are incapable of regulating an
activity simply because it occurs or even because it is
widespread in society. How common a practice is will be only
one factor in evaluating what the mores of the community are.
The fact that many people act in a certain way does not
automatically mean that such actions are part of "the
community's moral principles." As Harry Clor has pointed out so
well, community moral standards are not defined by the most
marginal conduct that the community is willing to "tolerate."
To embrace that approach would be to guarantee a downward
spiral: it would give community approval to marginal conduct
that would become more accepted, giving rise to more extreme
marginal conduct, and so forth.
Law can announce a community's moral standards, while tolerating
in practice but not in principle a fair amount of conduct that
is inconsistent with it. For example, there is no way to know
empirically with certitude how much adultery and fornication
went on in the past, contrary to laws which proscribed them.
One presumes that a great deal of it occurred, simply because
the sexual faculty is one that human beings seem to have
particular difficulty controlling. But that does not mean that
such laws were senseless or useless. By announcing society's
moral ideals, they may very well have reduced the incidence of
such activity. The move to "decriminalize" such conduct is
likely to contribute to a transformation of mores, by
encouraging people to view them as either no longer
objectionable according to society or as matters that are too
controversial and too subjective for society to take a stand
Moreover, it is not always very easy to judge whether society's
moral standards have genuinely changed. There often seems to be
a natural pendular motion in societies, such that conduct not
tolerated in one era is tolerated in the next but then is
rejected by the following era. For example, anti-communism held
sway in the `50s, declined in the mid-`60s and early-`70s, but
then strengthened again in the late `70s and `80s. What
intellectuals sometimes assume to be linear trends – ones they
like and want to reinforce – may turn out to be short-term
Still, at some point, the contrast between law and, not only
what many people do, but what most people believe will undermine
the law so much that the law does more harm (by the scandal of
its unenforceability) than good. At that point, the attempt to
legislate morality can become positively harmful.
The lack of fit between law and morality can occur not only when
laws representing a certain morality are declining, but also
when certain moral views are on the rise. The law may outstrip
the public support it is gaining, and that may actually have the
effect of creating a backlash that undermines the trend.
Interestingly enough, that seems to have happened in Roe v.
Wade. The U.S. Supreme Court took a generally
"liberalizing" trend on abortion, thinking that it could foresee
the end result of this trend, and it handed down an opinion that
produced one of the most extreme pro-abortion laws in the world.
Ironically, that proved to be a great stimulus to the
anti-abortion movement, which has been able to keep the issue
alive for over three decades after Roe attempted to
settle it, and has even had some (very partial) successes in
limiting Roe (e.g., by successful opposition to public
funding, by requirements of parental consent and waiting
periods, and the federal law prohibiting partial-birth
American Liberal Democracy
Perhaps the great question for us today in the United States is
the practical question of "what are the possibilities and limits
of law in the American regime?". This is not an easy question
to answer, because the late twentieth century has been a time of
considerable confusion about the "American public philosophy."
Contemporary intellectuals incline toward a form of
"antiperfectionist" liberalism that is hostile to the
non-liberal elements of the regime that the founders
For example, the mainstream tendency among intellectuals has
been toward decriminalization of all "victimless sex acts" –
consenting adults should be able to do what they want to do, as
long as they do not harm others and do not offend others by
doing it too publicly.
This would require removing those more traditional elements of
American law that restricted sexual activities in various ways,
on the grounds that there is an essential connection between sex
and the family, that the liberation of sex from these
constraints undermines the stability of the family, and that
unstable family life causes many serious social problems.
In this debate, the very definition and status of a major social
institution is at stake.
The victory of antiperfectionist or "neutral" or relativistic
liberalism would be disastrous for America.
Nor would a victory for its major critics in contemporary
American intellectual life – post-modernists and
multiculturalists – be much better. While they do not share
many of the illusions about alleged liberal "neutrality," they
tend to outstrip liberalism in denying a natural order that
would ground limits on personal freedom.
Their recognition of deeper social connections – the dependence
of individuals on various communities for their identities –
often provides a basis for insightful criticism of liberalism,
but beyond that critique it provides little, prevented by its
own modernist epistemological assumptions from attaining any
objective knowledge of reality and of the human good.
In the absence of any sure knowledge of what is good for human
beings, all that is left is "ersatz" community, community based
on arbitrarily posited values, community for the sake of
These challenges to traditional American democracy are profound
ones. They will require an effort to think through the sources
of the American public philosophy and to come to the recognition
that American liberalism has always depended for its health and
well-being on institutions and principles that it cannot account
for itself. Liberalism "worked" in the United States because it
existed within the framework of a moral order it inherited from
the remnants of pre-liberal natural law and natural right
thinking that survived, for example, in the common law and in
the moral teachings of early American Protestant Christianity,
revealed especially in the form of a family unit based on
natural duties. These remnants – once extensive, now diminished
– are the object of vigorous efforts by liberals (and radicals)
to root them out of American law. Those efforts have waxed and
waned. Roe v. Wade was a success story for them,
Bowers v. Hardwick
was a setback, Planned Parenthood v. Casey another
victory, the euthanasia cases another setback, Romer v.
Evans and Lawrence v. Texas new victories.
How the “culture war” manifested in such cases will turn out is
still uncertain, though a strong case can be made that the
setbacks to “autonomists” are likely to be short-lived, given
that intellectuals in general and especially legal intellectuals
are overwhelmingly committed to modernist autonomy. The recent
presidential election (though it did not turn on these issues)
will give a strong impetus to liberal forces. If that tide is
to be stemmed it will require a persuasive rearticulation of the
American public philosophy, along natural law/natural right
lines, that has barely begun.
One part of that rearticulation will have to be a statement of
principled limits on government power, e.g., in the area of
religious liberty. Another aspect will be the recognition of
substantial prudential limits on government, such as the
inability of the law to "impose" morality with little support in
the mores of our society.
But, equally important, a rearticulation of American public
philosophy will have to alert citizens to the illusion of
neutrality and the inevitability of civic character formation.
This will be easier for citizens of a liberal democracy to
accept if it can be shown that already we have many beliefs in
common in our pluralistic society. That is, pluralism is not
incompatible with having some common conceptions about what is
good for human beings. While we have deep differences on some
questions, there are points in common as well.
Christina Hoff Sommers, for example, has pointed out that we
should begin the teaching of ethics not by focusing on rare and
extreme cases on which we are most likely to differ, but on the
ordinary general ethical norms on which we have a great deal of
[it] is wrong to mistreat a child, to humiliate someone, to
torment an animal. To think only of yourself, to steal, to lie,
to break promises. And on the positive side: it is right to be
considerate and respectful of others, to be charitable and
The effort to rebuild a more substantial consensus about
elements of the human good will not be an easy one, especially
given the general trends among the intelligentsia in modernity.
What is necessary is a "slow and painstaking attempt at
reconstruction of moral philosophy", as Mary Ann Glendon says.
The difficulty of this task does not detract from its
 Summa Theologica
I, Q. 1, art. 1.
 Democracy in America
Vol. II, Book One, chapter 2.
 The Federalist Papers ed. G. Wills (New
York: Bantam, 1982),No. 49, p. 256.
 Bowers v. Hardwick 478 U.S. 186 (1986), and then
Lawrence v. Texas 539 U.S. 558 (2003). Of
course, the desire to remove such laws from the books was
partly due to fear that someone might try to enforce them at
some time. At the same time, it is only common sense to
recognize that people do care about the law and how it
regards them, irrespective of whether any penalties are
 On the moral subtle character of democratic
character-shaping, see Martin Diamond “Ethics and Politics:
The American Way” in ed. R. Horwitz The Moral Foundations
of the American Republic (University of Virginia Press,
 A description of certain approaches in this area, including
ones that claim to be “non-directive” is ably presented in
William Kirk Kilpatrick’s Why Johnny Can’t Tell Right
From Wrong (Simon and Schuster, 1992).
Summa Theologica I-II, Q. 96, Art. 4
 Nicomachean Ethics,
Book VII, 1-10.
 I make an argument along these lines in “Abortion and
Political Compromise” in First Things, Number 24
(June/July 1992), pp. 22-29.
 I am grateful to Darrell Dobbs of Marquette University for
suggesting this third point to me.
 Harry Clor's Obscenity and Public Morality
(University of Chicago, 1969) is one of the best discussions
of law and morality to be found anywhere. The discussion of
a community’s moral standards – and whether this corresponds
to the “outer limits” of what a society tolerates – is found
in chapter 1.
 On American abortion law see Mary Ann Glendon's Abortion
and Divorce in Western Law (Harvard University Press,
1987), which is an insightful examination of the limits of
law but also of its potential for educating citizens.
 For a description of some leading antiperfectionist
liberals, as well as some of its critics, see Liberalism
at the Crossroads: An Introduction to Contemporary Liberal
Political Theory and Its Critics eds. Wolfe and
Hittinger (Rowman and Littlefield, 1994 )
 The main thrust of Stanley v. Georgia 394 U.S. 557
(1969) represents this tendency, as well as Justice
Brennan’s dissent in Paris Adult Theater v. Slaton
413 U.S. 49 (1973).
A major exception to this liberal tendency may be the
movement, among feminists especially, to narrow the category
of “victimless” sex acts significantly. Note, however, that
the objections here are not to “erotica” per se, but to
portrayals of women in demeaning or subordinate positions.
See, for example, American Booksellers Association v.
Hudnut 771 F.2d 323 (1985) for discussion of a
feminist-inspired Indianapolis ordinance.
 From amongst a wealth of examples, see George Gilder Men
and Marriage (Gretna, La.: Pelican Publishing Co.,
1992); Patrick Fagan “The Modern Western Family: Trends and
Implications from the United States” Heritage Foundation
Backgrounder (December, 1997); and The Family, Civil
Society, and the State ed. Wolfe (Rowman and
 Antiperfectionists would deny, of course, that they are
moral relativists. (Rawls, for example, would regard moral
relativism as one “comprehensive” view, subject to the
requirement of liberal neutrality.) In one sense, it is true
that liberal autonomists are not moral relativists, since
ultimately moral relativism makes a truth-claim that is not
itself relative, but deeply rooted in a certain
understanding of human nature. (On this point, see Russell
Hittinger “Liberalism and the American Natural Law Tradition
” 25 Wake Forest Law Review 429, at 474-81 ).
Nonetheless, the practical effect of liberal neutrality is,
I believe, to foster moral relativism.
 See, for example, Russell Hittinger “Roberto Unger:
Liberalism and ‘Superliberalism’” in Liberalism at the
Crossroads eds. Wolfe and Hittinger (Rowman and
 See, for example, Mark Tushnet Red, White, and Blue
(Harvard University Press, 1988). For a critique, see Wolfe
How To Read the Constitution (Rowman and Littlefield,
1996), chapter 7.
 Roe v. Wade
410 U.S. 113 (1973); Bowers v. Hardwick 478 U.S. 186
(1986); Planned Parenthood v. Casey 120 L.Ed.2d 674
(1992); Vacco v. Quill 138 L.Ed.2d 834 (1997) and
Washington v. Glucksberg 138 L.Ed.2d 772 (1997),
Romer v. Evans 134 L.Ed.2d 855 (1996) and Lawrence v.
Texas 39 U.S. 558 (2003).
 Christina Hoff Sommers "Teaching the Virtues" Imprimis
Vol. 20, No. 11 (November, 1991).
 Glendon, Abortion and Divorce in Western Law, p. 140.