Morality and Criminal Law

Criminal law does not attempt to impose the standards of any particular religion, philosophy or school of ethics. It is fair to expect a country founded on the principal of religious freedom to maintain a legal system untainted by the doctrines of any particular philosophical, ethical or spiritual viewpoint. Moreover, the maxims of any form of dogma generally reach for perfection: the goal is to define the highest standard of human behavior.

As a matter of practicality, the law could not insist on maintenance of impossibly high standards. Rather, the role of the law is to define minimum standards; those levels of performance that are attainable by every reasonable individual and that rise to the level of social criteria.

This does not mean that morality plays no role in criminal law. Many crimes are also acts that are condemned by moral principals. And there are instances where society, through the law, attaches criminal status to certain behaviors not because they are a threat to social well being but because they run counter to moral standards held collectively by the state. Smoking marijuana might be an example of such behavior.

Many crimes have no basis in morality, but are administrative or dictated by the requirements of social order. Speeding laws, truancy laws, violations of tax law and income reporting are examples of prohibited behavior that has no basis in moral code. Indeed, the law requiring our annual filing of a 1040 form might be construed as a massive provocation leading to a calamitous breakout of loud and obscene expletives.

Obscenity statutes have been a battleground on this issue for generations. The Court commented on the question in Paris Adult Theater v Slaton: "Commercial exploitation of depictions…of obscene conduct on commercial premises open to the adult public falls within a State's broad power to…protect the public environment." "The issue goes beyond whether someone…considers the conduct depicted as…sinful. The States have the power to make the morally neutral judgment that public exhibition of such material…has a tendency to injure the community as a whole…or to jeopardize…the State's 'right…to maintain a decent society."

A Georgia court upheld a statute outlawing sodomy with some language that revealed substantial moral underpinning: "..Respondent asserts that there must be a rational basis for the law and that there is none…other than the presumed belief of…the Georgia electorate…that …sodomy is immoral…" "The law, however, is constantly based on notions of morality…"

Reflecting an opposing view, the Court struck down an anti-sodomy statute as an unconstitutional invasion of privacy. "With respect to regulation of morals, the police power should properly be exercised to protect each individual's right…but not to enforce a majority morality…" "Many issues that are considered to be matters of morals are subject to debate…indeed, what is considered to be 'moral' changes with the times and is dependent upon societal background." "Spiritual leadership, not the government, has the responsibility for striving to improve the morality of individuals." "…(P)unishment for what many believe to be abhorrent crimes against nature and perceived crimes against God, is not properly in the realm of the temporal police power."