The Significance of Lawrence v. Texas

By JAMES W. PAULSEN

Introducing the Harvard Law Review’s 2003 annual survey of United States Supreme Court decisions, Yale law professor Robert Post stated, “By any measure this last Term has proved remarkable, a confirmation of the endless capacity of the Court to astonish and surprise.”1 Lawrence v. Texas,2 a Houston gay rights case that issued on the last day of the Term, was Professor Post’s lead-off example of just how remarkable a year it really was.
This article provides some background on Lawrence, a synopsis of the Supreme Court’s ruling, and a little speculation on future legal consequences. However, the writer has tried to avoid making social value judgments. Space limitations aside, so many influential individuals and organizations — from the ACLU and the libertarian-leaning Cato Institute to President Bush and the Vatican3 — have weighed in on that aspect of Lawrence that one more personal opinion adds nothing.

Background
Lawrence began with an anonymous police call reporting an armed intruder. Responding officers found no armed intruder, but did find the front door of John Lawrence’s apartment ajar. Entering, they observed Lawrence having sex with Tyron Garner. The men were arrested, charged and convicted in justice court for the crime of deviate sexual intercourse with another individual of the same sex.4 On trial de novo in county criminal court, Lawrence and Garner raised state and federal due process claims. Again convicted and fined $200, they appealed.
The Texas sodomy statute was controversial long before Lawrence came along. For one thing, the law criminalized deviate sex only when engaged in by members of the same sex; heterosexual couples were not liable to prosecution. Moreover, the law was almost never enforced. In fact, though twice declared unconstitutional by the Austin Court of Appeals,5 a state declaratory judgment action challenging the statute had foundered in the Texas Supreme Court on the principal ground that the statute “has not been, and in all probability will not be, enforced against private consensual conduct between adults.”6
On appeal, a divided panel of Houston’s Fourteenth Court of Appeals initially sided with Lawrence and Garner.7 That decision unleashed a storm of protest from conservative groups, including specific condemnation in the Texas Republican Party’s 2000 platform:
“We publicly rebuke judges Chief Justice Murphy and John Anderson, who ruled that the 100 year-old Texas sodomy law is unconstitutional, and ask that all members of the Republican Party of Texas oppose their re-election, and activist judges like them, and support non-activist judges as their opponents.”8
The chair of the Harris County Republican Party even circulated a draft letter that urged the opinion’s author, then standing for re-election, to reverse his vote or step down, because the opinion blatantly defied the Republican Party platform.9 Fortunately, the letter-writing effort was derailed within the Party before Justice Anderson ever received a copy, which may have helped the instigators avoid criminal charges.10
In this superheated political climate, the Fourteenth Court of Appeals granted an en banc rehearing and reversed, seven to two.11 The two dissenters were Justice John Anderson and Chief Justice Paul Murphy, the original panel majority. Anderson was running unopposed as a Republican and could not legally be replaced on the ballot. Chief Justice Murphy resigned before the en banc opinion issued, though he had two years remaining in his term. The all-Republican Court of Criminal Appeals of Texas declined to review the case.12
Many thought political pressure had influenced judicial process.13 Chief Justice Murphy’s public denial that Lawrence had anything to do with his resignation may simply have fueled speculation.14 The same might be said of a lengthy defense of the Fourteenth Court’s independence in Justice Yates’ separate concurrence, which concluded: “There is simply no place for suggesting that the members of this court are pandering to certain political groups or deciding a case as a means to achieve a politically desired end.”15
When ruling on Lawrence and Garner’s federal due process rights, the en banc Houston court relied heavily on the U.S. Supreme Court’s 1986 Bowers v. Hardwick16 decision. Bowers was a factually similar Georgia case in which a police officer also entered a bedroom and observed consensual homosexual conduct that violated state law. The United States Supreme Court ruled that a so-called “fundamental right to engage in homosexual sodomy”17 is neither “implicit in the concept of ordered liberty”18 nor “deeply rooted in this nation’s history and tradition.”19 Accordingly, the State of Georgia needed only to show a rational basis for the statute, and longstanding notions of public morality sufficed.
It is hard to find much fault with the Fourteenth Court’s decision on the federal issues. The facts of Bowers were closely in point and the ruling unambiguous. Even the United States Supreme Court later noted that, Bowers then being authoritative, the Houston court’s reliance on the opinion was “proper.”20 Nonetheless, there were some potentially significant differences between Bowers and Lawrence: Bowers had not actually been prosecuted and the Georgia statute prohibited both homosexual and heterosexual sodomy. The Fourteenth Court’s decision therefore raised interesting federal questions, and the United States Supreme Court granted certiorari.21

The Supreme Court’s Decision
In its June 26, 2003 opinion, the Supreme Court held the Texas sodomy statute unconstitutional.22 Speaking for five of the six justices in the majority, Justice Anthony Kennedy ruled that the Texas statute violated Lawrence and Garner’s substantive due process rights. Concurring separately, Justice Sandra Day O’Connor agreed on more limited equal protection grounds. Justice Scalia dissented, in a lengthy opinion joined by Chief Justice Rehnquist and Justice Thomas. Justice Thomas also tacked on a short separate dissent advocating deference to state legislatures.
At least in hindsight, neither Lawrence’s basic outcome nor the general voting lineup was surprising. Even the sheriff’s deputy who originally arrested Lawrence and Garner correctly anticipated the result.23 Though Bowers v. Hardwick was only 17 years old, there was good reason to believe it might be trimmed back. Most notably, the Court’s 1996 decision in Romer v. Evans24 had struck down a Colorado constitutional amendment that forbade protection of homosexuals under state anti-discrimination laws. Justice Scalia dissented in Romer (together with the Chief Justice and Justice Thomas, as in Lawrence), noting among other complaints that the opinion contradicted Bowers.25
The surprising thing about Lawrence was not the result; it was the reasoning and the rhetoric. Substantively, the Court could have grounded its decision on the Equal Protection Clause of the Fourteenth Amendment,26 just as it had done a few years earlier in Romer v. Evans.27 An equal protection ruling would have struck down the Texas statute while avoiding a head-on collision with Bowers. Only Texas and three other states that criminalize same-sex sodomy would have been affected.28
Had Justice Kennedy just extended Romer’s equal protection rationale in Lawrence, he might even have cobbled together a unanimous ruling. The majority viewed the equal protection complaint as a “tenable argument.”29 Justice O’Connor thought it the winning argument, hence her separate concurrence. Even the dissenters might have been willing to go along, perhaps noting separately that they had lost the equal protection fight in Romer and now felt compelled as good judicial conservatives to give Romer stare decisis effect. Justice Kennedy’s explanation for refusing to go the equal protection route was simple: “Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct between same-sex and different-sex participants.”30
Rather than sidestep Bowers with an equal protection ruling, the Lawrence majority took the bull by the horns: “The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.”31 The Court’s disposition of Bowers was uncharacteristically blunt: “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”32
Lawrence is not, strictly speaking, a gay rights decision. Instead, Lawrence holds that the Texas sodomy law violated the liberty rights of all Texans, gay and straight alike. To quote the Court: “The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”33
Lawrence is not terribly specific on what sort of state interest would be “legitimate,” or how the balance between group interests and individual rights should be struck. What Lawrence does say, in no uncertain terms, is that moral disapproval alone cannot justify criminal sanctions for private consensual sexual conduct. As with the Court’s disposition of Bowers, the language used to make the point is striking:
“[F]or centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. 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. ‘Our obligation is to define the liberty of all, not to mandate our own moral code.’”34
Whether one likes the result or not, Lawrence is an extraordinary piece of legal advocacy. Even the ACLU’s point man was taken aback by the “tone and nature” of the ruling.35 Justice Scalia’s dissent provides an interesting, though perhaps slightly “over the top,” counterpart. He predicts that Lawrence will call into question state laws against “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity,”36 as well as laws forbidding “prostitution, recreational use of heroin, and . . . working more than 60 hours per week in a bakery.”37

Implications for the Future
So what should one make of Lawrence? For many, the urgent question is whether Lawrence opens the door to same-sex marriage. More generally, in line with Scalia’s dire warnings, Lawrence may impact areas of law far afield from gay and lesbian rights. Even more generally, Lawrence could be a genuine landmark in civil rights law, representing a significant shift in underlying constitutional theory. Each issue will be addressed briefly.

Same Sex Marriage
Lawrence has been accused of sanctioning same-sex marriage, even spurring an effort to amend the United States Constitution to define “marriage” in a Lawrence-proof way.38 For example, when winding up his laundry list of “horribles,” Justice Scalia states that “the Court makes no effort to cabin the scope of its decision” to exclude such state laws from the Lawrence holding.39
Nonetheless, and contrary to what conservative pundits, televangelists and even Justice Scalia may say, the Lawrence majority actually took great care to avoid any ruling on the same sex marriage question. For example, the opinion refers to homosexuality as “a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.”40 And right after the sentence overruling Bowers, the Court adds: “The present case does not involve . . . whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”41 Those are important qualifications.
In all likelihood, the same-sex marriage issue will likely play out in state courts and legislatures, not United States Supreme Court’s marble corridors. Even while Bowers was law, courts in Hawaii, Alaska and Vermont found justification for same-sex marriage in their respective state constitutions.42 (Hawaii and Alaska avoided the question through constitutional amendment. Vermont settled for separate-but-equal “civil unions,” a model recently followed by the California Legislature.43)
Indeed, though a Massachusetts decision recognizing same-sex marriage44 was announced after Lawrence, the case was argued and pending decision before Lawrence issued. The Supreme Judicial Court of Massachusetts cited Lawrence prominently and favorably, but ultimately based the decision on state law. On the other side of the ledger, in a case instituted days after the Lawrence ruling, an intermediate Arizona court has already rejected a gay couple’s contention that there is a “fundamental right” to enter a same-sex marriage.45 That decision reportedly will be appealed.46 At press time, other actions were pending in Nebraska and New Jersey.47
It is only a matter of time, Lawrence or no Lawrence, before Texas must decide whether to give full faith and credit to same-sex marriages performed in another state.48 That question was difficult even before Lawrence was added to the mix.49 Marriage and divorce laws differ in significant respects from state to state. While one state can in theory refuse to recognize an out-of-state marriage that violates its fundamental public policy, it is difficult to draw lines.
If Texas declines to recognize a Massachusetts same-sex marriage on public policy grounds, must Texas also refuse to recognize marriages that are legal in other states but would violate Texas law on residency, age of consent, or degree of consanguinity? Could Massachusetts (or any one of 37 other states) retaliate by refusing to recognize the legality of a Texas informal marriage?
Matters are further complicated by a 2003 Texas Family Code amendment that declares same-sex marriages or civil unions “contrary to the public policy of this state.”50 That seems clear. But our state Legislature explained in a non-codified preamble that Texas law already lets same-sex couples do pretty much everything married couples can do.51 Pity the advocate who has to explain how that fine distinction represents Texas public policy so fundamental that the Constitution’s Full Faith and Credit Clause52 can be ignored.
All that said, while Lawrence is crafted to avoid answering the same-sex marriage question, the opinion’s rhetoric and tone surely will influence the debate. New York Times writer Linda Greenhouse described Lawrence as “background music that suffused the Massachusetts [same-sex marriage] opinion.”53 Continuing the musical motif, Harvard’s Laurence Tribe said that, “You’d have to be tone deaf not to get the message from Lawrence that anything that invites people to give same-sex couples less than full respect is constitutionally suspect.”54 USC’s Erwin Chemerinsky55 and Texas’ own former Solicitor General Greg Coleman more or less concur.56 So maybe Justice Scalia and other prophets of doom will prove right in their predictions that Lawrence signals the demise of heterosexual-only marriage, even if they are wrong on the details.

Morals Legislation
The Lawrence majority’s decision to focus on substantive due process rather than equal protection means that the decision is both narrower and broader than one for which many had hoped. From a gay and lesbian rights perspective, a strong equal protection ruling, one that recognized homosexuals as a protected class that could demand stricter-than-average scrutiny of discriminatory legislation, might have been more helpful. In that respect, Lawrence actually can be seen as a narrow ruling.57
On the other hand, the Court’s decision to frame the issue as protecting an individual’s liberty to engage in private conduct free from state intervention creates a ruling that sweeps broadly. In Bowers, the Supreme Court said that “if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.”58 After Lawrence, any law that can be justified only because “most people think that sort of thing is immoral” may be in constitutional trouble.59 Assuming Bowers was right, litigation involving “victimless crimes” may increase.
To an extent, the Lawrence majority tried to beat litigants to the punch. In addition to intimating that Lawrence could not be taken as authority on same-sex marriage, the majority cautioned that Lawrence “does not involve minors, . . . persons who might be injured or coerced . . ., public conduct or prostitution.”60 Nonetheless, in addition to same-sex marriage cases in several states, Lawrence already has been invoked in a successful Ninth Circuit challenge to the military’s “don’t ask, don’t tell” policy,61 and with varying degrees of success in trial level cases involving the solicitation of sex, pornography, and polygamy (the last one in Utah, of course).62 There will surely be more.

The Shift from Privacy to Liberty
The last point, and it could be the biggest, is that Lawrence might represent a basic shift in constitutional doctrine, from privacy to liberty. Beginning with Griswold v. Connecticut63 and blossoming into full flower in Roe v. Wade,64 the “right to privacy,” with its accompanying “emanations” and “penumbras,” has taken a lot of criticism over the years. Justice Thomas’ dissent in Lawrence is typical. Though Thomas thought Texas’ sodomy law “uncommonly silly,”65 he saw no constitutional basis for getting involved. Copying Justice Stewart’s dissent in Griswold, Thomas stated:
I “can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy,” or as the Court terms it today, the ‘liberty of the person both in its spatial and more transcendent dimensions.’”66
Justice Thomas may have completely missed the point. True, the word “privacy” cannot be found in the Constitution. But “liberty” is prominent in the Constitution’s text, not only in the preamble and original Bill of Rights, but in the Fourteenth Amendment.67 By referring to both a “spatial” dimension of liberty (presumably, private conduct) and “more transcendent dimensions” (examples of which might include public conduct such as speech and association),68 Lawrence may be taking a significant step toward subsuming the textually questionable “right of privacy” into a textually respectable “right of liberty.”
Books could be written (and have been written69) on the possible implications of such a shift in constitutional thinking. Perhaps the Court’s choice of words in Lawrence is not as significant as this writer thinks it is (though if he is hallucinating, he is not alone70). Details aside, though, something involving a substantive “right to liberty” is almost certainly going on in Lawrence. “Liberty” is Lawrence’s first word, and liberty is the focus of the opinion’s concluding substantive paragraph.71 Between these bookends, the word “liberty” is mentioned 23 times. By contrast, Lawrence mentions “privacy” or a “right of privacy” only 4 times, and even then, only in innocuous contexts.72
Of all other recent Supreme Court decisions, the one that most closely resembles Lawrence in argument and style is a 1992 abortion consent case, Planned Parenthood of Southeastern Pa. v. Casey.73 Like Lawrence, Casey emphasizes liberty over privacy. In fact, both the first and last substantive words of Casey are “liberty.”74
To some extent, the fact that Lawrence resembles Casey is not surprising: Justice Kennedy is one of Casey’s three co-authors,75 and Lawrence cites Casey as one of the “[t]wo principal cases” that cast doubt on Bowers’ continued viability76 (the other being Romer v. Evans, previously discussed77). Nonetheless, the observation that Lawrence strongly resembles Casey still says quite a bit. Casey was in some parts only a three-judge plurality. Comparing Casey to Lawrence and adding a reasonable assumption or two, it is altogether possible that Justice Kennedy’s “liberty” analysis now commands a six-Justice majority.78 As one scholar puts it, six votes constitute “a virtual landslide on the normally divided Rehnquist court.”79

Conclusion
Much more could, and surely will, be said about Lawrence. But not here. People are naturally inclined to discount “local” events as unimportant. Once one sits down and reads the opinions, though, it is hard not to come away with the impression that, Houston justice court case or not, Lawrence’s effects will likely ripple across the nation for years to come.

Endnotes
1. Robert C. Post, The Supreme Court, 2002 Term: Foreword, Fashioning the Legal Constitution: Culture, Courts, and Law, 117 Harv. L. Rev. 4 (2003). 2. 123 S. Ct. 2472 (2003). 3. See generally Jeremy Leaming, Marriage Proposal: Religious Right, Political Allies Launch Crusade to Alter Constitution, Church & State, Oct. 1, 2003, at 4 (reporting President Bush’s and the Vatican’s support for legal action to preserve traditional marriages). 4. Tex. Penal Code Ann. § 21.06(a) (2003). 5. See City of Dallas v. England, 846 S.W.2d 957 (Tex. App.—Austin 1993, writ dism’d w.o.j.); State v. Morales, 826 S.W.2d 201 (Tex. App.—Austin 1992), rev’d on other grounds, 869 S.W.2d 941 (Tex. 1994). 6. State v. Morales, 869 S.W.2d 941, 943 (Tex. 1994). 7. Lawrence v. State, Nos. 14-99-00109-CR, 14-99-001112003-CR, 2000 Tex. App. LEXIS 3760 (Tex. App.—Houston [14th Dist.], June 8, 2000) (withdrawn on reh’g). 8. This document is no longer available on the Party’s official web site, but can still be found at any number of other locations. See, e.g., <http://www/parkergop.org/2000%20 Texas%20Platform.htm> (visited Dec. 3, 2003). 9. Neil Coleman McCabe, Review of Sodomy Case Validates Justices’ Opinion, Tex. Lawyer, Apr. 14, 2003, at 49; see also generally Alan Bernstein, Court Upholds Sodomy Ban in Refusing to Hear Appeal, Hous. Chron., Apr. 19, 2002, at 40. 10. See generally Brenda Sapino Jeffreys, Criminal Investigation Sought Because of Alleged Pressure Tactics, Tex. Lawyer, July 17, 2000, at 6. 11. Lawrence v. State, 41 S.W.3d 349 (Tex. App.—Houston [14th Dist.] 2001). 12. See Alan Bernstein, Court Upholds Sodomy Ban in Refusing to Hear Appeal, Hous. Chron., Apr. 19, 2002, at 40. 13. Some even said so in public. See, e.g.,McCabe, supra note 8; Stephanie Hoops, 14th Court Says Sodomy Statute Passes Constitutional Muster, Tex. Lawyer, Mar. 26, 2001, at 6. 14. Inadmissible: Stepping Down, Tex. Lawyer, Feb. 19, 2001, at 3. 15. Lawrence, 41 S.W.3d at 363 (Yates, J., concurring). 16. 478 U.S. 186 (1986). 17. Id. at 190. 18. Id. at 191 (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)). 19. Id. at 192 (quoting Moore v. East Cleveland, 431 U.S. 494, 503 (1977). 20. Lawrence, 123 S. Ct. at 2476. 21. Lawrence v. Texas, 537 U.S. 1044 (2002). 22. Lawrence, 123 S. Ct. 2472 (2003). 23. Like many others, though, Deputy J.R. Quinn got the specific ground for decision wrong. See Richard Connelly, Back Door to History: Thank J.R. Quinn for the Gay Celebrations, Hous. Press, July 10, 2003 (stating that “It’s not illegal for a man and a woman to do that, so under the equal protection laws I figured they’d rule like they did.”). 24. 517 U.S. 620 (1996). 25. Id. at 636 (Scalia, J., dissenting). 26. U.S. Const. amend. XIV § 1 (“nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws”). 27. Apparently, this view is not uncommon. See, e.g., Michael Dorf, Review Essay, The Domain of Reflexive Law, Regulating Intimacy: A New Legal Paradigm, 103 Colum. L. Rev. 384, 388 n. 23 (2003) (stating that “[s]hould the Court overturn Hardwick [in Lawrence], the decision would almost certainly rest on a view about discrimination based on sexual orientation, even if the decision were formally to rest on an elaboration of the meaning of liberty rather than equality”). 28. Lawrence, 123 S. Ct. at 2481 (stating that “[t]he 25 States with laws prohibiting the relevant conduct reference in the Bowers decision are now reduced to 13, of which 4 enforce their laws only against homosexual conduct”). 29. Lawrence, 123 S. Ct. at 2482. 30. Id. 31. Id. 32. Id. at 2484. This blunt language may be another reason why Justice O’Connor, a member of the Bowers majority, felt constrained to find another rationale for her concurrence. Cf. Lawrence, 123 S. Ct. at 2484 (O’Connor, J., concurring) (noting that “I joined Bowers, and do not join the Court in overruling it”). 33. Lawrence, 123 S. Ct. at 2484. 34. Id. at 2480 (quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992)). 35. Richard Brust, The Man in the Middle: Justice Kennedy’s Opinion in the Gay Rights Case Underlines His Growing Influence, 89 A.B.A. J., October 2003, at 24. 36. Lawrence, 123 S. Ct. 2490 (Scalia, J., dissenting). 37. Id. at 2491. 38. The federal Defense of Marriage Act (DOMA) is intended to accomplish much the same thing. See 1 U.S.C. § 7. The push to amend the Constitution may stem in part from fears DOMA is unconstitutional. 39. Id. at 2490. 40. Lawrence, 123 S. Ct. at 2478 (emphasis added). 41. Id. at 2484. 42. See Brause v. Bureau of Vital Statistics, No. 3AN-95-6562CJ (Alaska Super. Ct. Feb. 27, 1998); Baehr v. Lewin, 852 P.2d 44 (1993); Baker v. State, 744 A.2d 864 (Vt. 1999). 43. See Cal. Fam. Code §§ 297-299.6. 44. Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003). 45. Standhardt v. Superior Court, 77 P.3d 451 (Ariz. App. 2003). 46. See Judy Nichols, Same-Sex Marriage Advances, Ariz. Republic, Nov. 19, 2003, at 1A. 47. See Cheryl Wetzstein, Battle Fronts Form Over Marriage Laws, Wash. Times, Nov. 17, 2003, at A3. 48. It is worth noting that at least one case involving a Vermont civil union already has come before Texas courts. A Beaumont judge initially granted dissolution to a couple who had relocated to Texas, then reversed himself at the strong suggestion of Texas Attorney General Greg Abbott. See, e.g., Melissa Drosjack, Gay Couple Won’t Get Texas Divorce, Hous. Chron., Mar. 29, 2003, at A39. 49. Some of these issues were ably discussed in a recent Texas Lawyer opinion piece. See Evan P. Schultz, Must High Court Recognize Gay Marriage?, Tex. Lawyer, Aug. 4, 2003, at 30. 50. Tex. Fam. Code § 6.204. 51. See S.B. 7, 78th Leg., R.S. (2003). 52. U.S. Const. art. IV, § 1 (“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”). 53. Linda Greenhouse, Same-Sex Marriage: The Context, N.Y. Times, Nov. 18, 2003, at A24. 54. Id. 55. See Erwin Chemerinsky, October Term 2002: Value Choices by the Justices, Not Theory, Determine Constitutional Law, 6 Green Bag 2d 367, 370-71 (2003) (stating that “Justice Scalia likely is correct in his dissent in saying that laws that prohibit same-sex marriage cannot, in the long term, survive the reasoning of the majority in Lawrence”). 56. Prepared Testimony of Gregory S. Coleman Before the Senate Committee on the Judiciary Committee Subcommittee on the Constitution, Civil Rights, and Property Rights, Fed. News Serv., Sep. 4, 2003. 57. This point has been made by, among others, George Washington University Law School Professor Jonathan Turley. See Jonathan Turley, Not As Radical As All That, Nat’l L.J., July 14, 2003, at 31; cf. Post, supra note 1. 58. 478 U.S. at 196. 59. In addition to language already quoted, the Lawrence majority notes that “Texas attempts to justify its law, and the effects of the law, by arguing that the statute satisfies rational basis review because it furthers the legitimate governmental interest of the promotion of morality.” 123 S. Ct. at 2486. That attempt, of course, was not successful. Later in the opinion, the majority quotes with great approval Justice Stevens’ statement in Bowers that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice. . . .” Lawrence, 123 S. Ct. at 2483 (quoting Bowers, 478 U.S. at 216) (Stevens, J., dissenting)). 60. Lawrence, 123 S. Ct. at 2484. 61. Hensala v. Dep’t of the Air Force, 343 F.3d 951 (9th Cir. 2003). 62. See Fallout From the Lawrence v. Texas Case, <www.religioustolerance.org/ hom_laws9.htm> (visited Dec. 5, 2003). The writer is grateful to South Texas College of Law student Bradford Crockard for bringing the Utah case to his attention. 63. 381 U.S. 479 (1965). 64. 410 U.S. 113 (1973). 65. Lawrence, 123 S. Ct. at 2498 (Thomas, J., dissenting). 66. Id. (quoting Griswold, 381 U.S. at 530) (Stewart, J., dissenting)). 67. See U.S. Const. preamble (“secure the Blessings of Liberty to ourselves and our Posterity”; amend. V (“nor be deprived of life, liberty, or property, without due process of law”); amend. XIV (“nor shall any State deprive any person of life, liberty, or property, without due process of law”). 68. This reading would seem reasonable from the first paragraph of the opinion. See Lawrence, 123 S. Ct. at 2475. 69. See Randy E. Barnett, The Structure of Liberty: Justice and the Rule of Law (1998) and Restoring the Lost Constitution: The Presumption of Liberty (forthcoming 2003). 70. In particular, this writer would recommend a thoughtful and easy-to-read article by Professor Randy Barnett of the Boston University Law School. See Randy E. Barnett, Kennedy’s Libertarian Revolution, National Review Online, July 10, 2003. 71. Lawrence opens with, “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places.” 123 S. Ct. at 2475. 72. “Privacy” appears in the wording of one of the issues on which cert was granted, in a reference to Griswold, and twice in a quotation from another case, also referring to Griswold. See id. at 2476, 2477, 2477 (quoting Eisenstadt v. Baird, 405 U.S. 438, 453 (1972)). The word “private” appears a good number of times, as would be expected even in an opinion that discusses the “spatial dimensions” of liberty. See, e.g., supra note 71. 73. 505 U.S. 833 (1992). 74. Casey begins with the now-famous sentence, “Liberty finds no refuge in a jurisprudence of doubt,” and ends, “We invoke it [the constitutional covenant] once again to define the freedom guaranteed by the Constitution’s own promise, the promise of liberty.” Id. at 844, 901. 75. The other two are Justices O’Connor and Souter. 76. Lawrence, 123 S. Ct. at 2481. 77. See supra text accompanying endnotes 24-31. 78. For the curious, while only Kennedy, Souter and O’Connor signed on to the entire Casey opinion, five justices approved most of the “liberty” analysis. While Justice O’Connor separately concurred in Lawrence, that probably just reflects her reluctance to overrule Bowers, a decision in which she had personally participated. Nothing in Lawrence suggests Justice O’Connor would not endorse Kennedy’s “liberty” analysis in an appropriate case. 79. Turley, supra note 59.


James W. Paulsen is a professor of law at South Texas College of Law. He earned his B.F.A. degree at Texas Christian University, his J.D. at Baylor Law School, and an LL.M. from Harvard Law School. The writer thanks Professor Randall Kelso of the South Texas College of Law for his comments.

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