The Supreme Court and Morality Policy Adoption in the American States: The Impact of Constitutional Context

By Patton, Dana | Political Research Quarterly, September 2007 | Go to article overview

The Supreme Court and Morality Policy Adoption in the American States: The Impact of Constitutional Context


Patton, Dana, Political Research Quarterly


Morality policy studies are generally constructed around the theoretical perspective of democratic responsiveness, whereby factors such as religious affiliation of citizens, public opinion, and partisanship affect adoption. The author expands morality policy theory to include the U.S. Supreme Court. She creates a measure of the "constitutional context" state legislators are faced with when debating morality policy proposals and develops a series of hypotheses regarding its effect on morality policy adoption. She tests these hypotheses by employing an event history model of state abortion policy adoptions from 1973 to 2000. The results indicate that the constitutional context has a significant effect on abortion policy adoption; however, its effect is conditioned by the state political environment.

Keywords: Supreme Court; morality policy; state legislatures

With its power of judicial review, the U.S. Supreme Court has a profound effect on the policy-making environment in the American states. As Canon and Johnson (1999, 199) noted, "The Court's exercise of judicial review of state and local laws is its most important and most often used policy-making tool in modem times." While this is potentially important for any policy, it is particularly important for morality policies, which codify values into law (Meier 1994; Mooney and Lee 1995; Gormley 1986; K. B. Smith 2001). Due to the constitutional issues morality policies raise regarding personal liberties such as freedom of speech and expression, privacy, or the separation of church and state, morality policies are especially likely to be challenged at the highest level of the federal judicial system.1

The Supreme Court has been particularly active in the past several decades in its review of morality policies. Abortion, perhaps the most hotly contested morality policy to date, was the subject of more than twenty-five opinions issued by the Supreme Court between 1973 and 2000. Other morality policies have also frequented the docket of the Court numerous times. For example, the Supreme Court has heard more than fifteen cases dealing with the separation of church and state since its controversial decision banning organized school prayer (Engel v. Vitale 1962). In addition, more than ten opinions have been issued regarding obscenity and adult entertainment businesses.

Despite the active role the Supreme Court has played regarding morality policies, no study to date has investigated the effect of the Supreme Court on morality policy adoption. Indeed, as Canon (1992, 646) pointed out, "Although subject to frequent speculation, questions about the catalytic role of Supreme Court decisions have not been empirically researched." In this article, I extend morality policy theory by explicitly incorporating the role of the Supreme Court and how it may interact with the state political environment to affect morality policy adoption. I introduce a typology of "constitutional contexts" that characterizes the state policy-making environment when morality policies are under consideration. I then develop a series of hypotheses regarding its effect on morality policy adoption, and test these hypotheses by employing an event history model of state abortion policy adoptions from 1973 to 2000. The results indicate that the constitutional context has a significant effect on abortion policy adoption; however, its effect is strongly conditioned by the state political environment.

The Study of Morality Policies

Morality policies, which some refer to as social regulatory policies or culture war issues, include a broad range of policies that are fundamentally similar because they elicit support or opposition based largely upon individuals' core values. Such policies are characterized as a debate over first principles where at least one group involved portrays an issue in terms of morality or sin and uses moral arguments to support a policy position (Gormley 1986; Meier 1994; Mooney and Lee 1995; Haider-Markel and Meier 1996; Mooney 2001). …

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