Lawrence v. Texas: Encyclopedia II - Lawrence v. Texas - Broader implications

Lawrence v. Texas - Broader implications

Lambda Legal, which brought the case, hailed the decision as "a legal victory so decisive that it would change the entire landscape for the LGBT community." [1] Jay Alan Sekulow of the American Center for Law and Justice has referred to the decision as having "changed the status of homosexual acts and changed a previous ruling of the Supreme Court...this was a drastic rewrite." [2] These reactions reflect widespread opinion that Lawrence v. Texas may ultimately be one of the Supreme Court's more influential decisions. Broader implications of this decision have been speculated, including the following:

• Even though not decided upon equal protection grounds, homosexual rights supporters still hope that the majority decision will call into question other legal limitations on the rights of homosexuals, including the right to state recognition of homosexual marriages, and the right to serve in the military. Although no court has interpreted the U.S. Constitution to require states to allow same-sex marriage, the Massachusetts Supreme Judicial Court ruled in Goodridge v. Dept. of Public Health that the constitution of the Commonwealth of Massachusetts did not prevent homosexuals from being given full marriage rights. The decision did cite Lawrence, which was decided some four and a half months earlier, but did not draw on its direct precedential authority, as Goodridge was decided on exclusively state constitutional grounds. However, the Court did cite Lawrence in interpreting text similar to that of the U.S. Constitution; state courts usually draw on federal court decisions the U.S. Constitution in interpreting analogous language in state constitutions.However, Several Federal District and Appellate Courts that have considered the extent of Lawrence have held that it is an extremely narrow holding under rational basis review. These courts have ruled that Lawrence does not call into question laws regulating marriage, nor does Lawrence strike down other regulations related to homosexuality. (See Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005); Lofton v. Sec. of Dep’t of Children & Family Services, 358 F.3d 804 (11th. Cir. 2004); Williams v. Attorney General of Alabama, 378 F.3d 1232 (11th Cir. 2004))
• An issue central to the case, particularly focused on during oral argument, was whether laws can be justified merely through invocations of "morality" without the demonstration of any actual harm. This issue was a major concern for Justice Scalia in his dissent. Many laws would likely fail the test that the Texas sodomy statute failed here, including those prohibiting other forms of sexual behavior considered "deviant," or bans against obscene materials.
• This case and its opinions exemplify fundamental debates in constitutional theory. Some argue that the original intent of the Framers of the Constitution should play the central role in constitutional interpretation. Others argue that the courts should have a more active role in expanding concepts of liberty, striking down majoritarian laws when they believe it necessary to protect unpopular minority groups and conduct. Both general positions have their judicial and scholarly supporters.
• Central to the conflict over constitutional interpretation is the doctrine of substantive due process, a doctrine that is supposed to protect rights not explicitly guaranteed in the Constitution but still considered "implicit in ordered liberty." Many of the applications of this doctrine have been the target of criticism that the justices have read their personal views into the Constitution (see, for example, Lochner v. New York). The right to privacy, particularly in the context of abortion, is considered by some contemporary critics to be just such an unwarranted and excessive judicial invention. In light of this, it may be significant that Justice Kennedy's majority opinion focused on liberty rather than privacy. Though both are embraced under substantive due process, the shift might signal a significant change in the theoretical basis of the Court's fundamental rights jurisprudence, perhaps in an attempt to skirt the usual criticism over a general privacy right (see due process). Further, substantive due process is traditionally only to be used to protect what the court finds to be a "fundamental right". Since Kennedy's majority opinion at no time uses the term "fundamental right" to describe the conduct at issue, he leaves open the question of what level of scrutiny should be applied to examine laws abridging the conduct: "rational basis" scrutiny, which gives great deference to the legislature, or so-called "heightened" or "strict" scrutiny, which almost always results in striking down the government's action. Though the Texas statute was struck down here, Kennedy used language similar to "rational basis" cases in the past. This ambiguity creates difficulty for the states in trying to decide what types of laws will not be tolerated under the court's new reasoning.
• The Court has not ruled on statutes prohibiting adult incest, polygamy, adultery, prostitution, and other forms of sexual intimacy between consenting adults. Lawrence may have created a slippery slope for these laws to eventually fall. Conservative critics argue that the Court's doctrine in areas of sexual intimacy will not be entirely consistent internally until these issues are dealt with explicitly.
• Lawrence had the additional impact of invalidating age of consent laws that differed based on sexual orientation. Soon after the Lawrence decision, the Supreme Court ordered the State of Kansas to review its 1999 "Romeo and Juliet" law that reduces the punishment for a teeanger under 18 years of age that has consensual sexual relations with a minor no more then four years their junior, but explicity excluds homosexual teenagers[3]. However, in 2004 the Kansas Appeals Court upheld the law as is, but the Kansas Supreme Court reversed the lower court's ruling on October 21, 2005 [4]. The United States Supreme Court order for the Kansas court to review the law in light of Lawrence would seem to suggest that the age of consent must be the same for heterosexuals and homosexuals[5].
• The use of European court decisions as persuasive authority by the majority raises the question of what influence foreign court decisions should have on United States law.

Many proponents of same-sex marriage draw upon Lawrence in their Constitutional reasoning, despite the fact that the High Court stated, "[The decision] does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Lawrence v. Texas, 539 U.S. 558 (2003). The concurring opinion of Justice O'Connor stated that "preserving the traditional institution of marriage" is indeed a "legitimate state interest" and that "other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group." Lawrence v. Texas, 539 U.S. 558 (2003) (O'Connor, J. concurring).

Homosexual rights proponents believe that, Lawrence explicity analogized homosexual sodomy and heterosexual intercourse, and that Lawrence severed the link between constitutional protection of sexual conduct and whether the activity is procreative or takes place within the marital relationship or is traditionally protected by society, the logic of Lawrence casts considerable doubt on laws restricting marriage to opposite-sex couples, notwithstanding the not-so-subtle suggestions in both the majority opinion and in Justice O'Connor's concurrence that the court is not willing to listen to this argument, and that some of the justices (Kennedy and O'Connor specifically) would switch sides to vote with the dissenters in this case if the issue of gay marraige came before them.

However, subsequent federal and state case law has been explicitly contrary to this belief, upholding traditional state regulations on marriage, and expressly allowing a marriage-procreation link. (See Standhardt v. Superior Court ex rel County of Maricopa, 77 P.3d 451 (Ariz. App. 2003); Morrison v. Sadler, 2003 WL 23119998 (Ind. Super. Ct.) cert. denied (2003); Lewis v. Harris, 2003 WL 23191114 (N.J. Sup. Ct. 2003); Hernandez v Robles (2005 NYSlipOp 25057))

As with all Supreme Court cases, the meaning of Lawrence will deepen as it is interpreted by lower state and federal courts, legal scholars, and the Supreme Court itself, revealing how broad or how narrow its guarantees of liberty extend.

Lawrence v. Texas raises the question of whether other prohibitions on the private sexual behaviour of consenting adults are unconstitutional, e.g. cases of incest. In Muth v. Frank, the 7th Circuit declined to extend the reasoning of Lawrence to cases of consensual adult incest, although it did rule that Lawrence v. Texas was "a new substantive rule and [...] thus retroactive".

Adapted from the Wikipedia article "Broader implications", under the G.N U Free Docmentation License. Please also see http://en.wikipedia.org/wiki