Law Class Notes 4/12/04
Lawrence v. Texas
constitutional right does the Court protect in Lawrence? They
say something about “liberty”. But what
liberty in particular? How do we
distinguish under the Constitution between prostitution and what was going on
in this case? There are forms of intimate
or close friendship which don’t lead to intimate sexual relationships. Prostitution is just about sex and money
rather than love. The rhetoric of the majority
opinion talks about “defining oneself” and one’s identity. It’s a kind of romantic opinion in some sense: the Constitution is said to protect
romance and not just sex.
Is casual sex outside the
scope of Lawrence? Could there be statutes that mandate a
waiting period before you could have sex?
says that it’s about people developing their own identity and how they will
live their own lives. Casual sex may not
be for everybody, but we say that that’s liberty and you can choose to live the
way you want. But then why don’t we
include prostitution? Not everyone may
choose to be a prostitute or engage the services of a prostitute, but if they
do, why isn’t it covered? Why can’t the Constitution
be construed to say that there is a theory
of consent, and without any specific indications that a particular prostitute
is incapable of consent, we will presume that prostitutes and their clients are
capable of consent?
has been outlawed for a long time. But
so has sodomy. That fact was used by the
Bowers Court. Now, the Lawrence Court repudiates history and tradition as a guide. If we we’ll look at tradition sometimes but
not other times, we need a principle to tell us when we’ll look at tradition
and when we won’t. How do we know
whether we should go down the “tradition road” versus the “non-traditional road”? “[H]istory and tradition are the starting
point but not in all cases the ending point of the substantive due process
inquiry.” What else are we supposed to
consider? History and tradition are the ending point in some cases. We need two more things: (1) we need the
principle that will tell us whether to stop
at history and tradition for some cases but not others, and (2) once we’re
thinking about stuff other than
history and tradition, we need to know just what else we’re going to think
opinion talks about recent history in two different ways. First, it talks about the recent history of
decriminalizing sexual acts. Then, since
the 1970s a minority of states has passed a law like the one in Texas that just punishes gay sex
but not heterosexual sex. The old history in America had not been to discriminate
against gays as such. The laws were more generalized “anti-sex-as-fun”
laws! There were sodomy laws since the
colonial era, right up to the post-Civil War era and after. So there has been a trend of liberalization,
but also a trend of targeting gay sexual relations in particular for legal
condemnation. Is it so clear that the
trend among the states speaks in favor of what the Court is doing here? This decision doesn’t protect prostitution,
but it does protect casual sex that isn’t prostitution. How do we explain this? History and tradition don’t seem to do
it. If the state’s interest is morality
and that’s not good enough to uphold sodomy laws, then why is that good enough
for prostitution? Maybe the exchange of
money is seen as demeaning sex. Why does
Nevada permit prostitution while other states ban it?
people historically have thought that marriage is about love and romance and
stuff. But there are also economic
analyses of marriage. It’s not just a
social relationship but also an economic relationship!
can’t states have the right to declare that gay sex or sodomy is wrong when
they can have the right to say that prostitution is wrong? How do we know what the Constitution
says? The Constitution doesn’t say anything
about it, at least not directly.
of the things that Lawrence talks about is the right of
two individuals to engage in intimate relationships at home. But why two?
Why not three or four? Where does
this come from in terms of tradition or reasoned judgment? Maybe we can dignify group sex/intimate
relations/marriage with constitutional protection. The Court has held that the Constitution
doesn’t protect polygamy, but that case was from the 19th century. If there are some American citizens who believe
polygamy is appropriate, how can we say that the Constitution does not protect
polygamy when it protects sodomy?
the point of Lawrence is that the
culture is now more open and doesn’t think that homosexuality is wrong, to what
extent do we need the Court interpreting the Constitution to decide these
cases? If that’s the cultural view, then
presumably the democratic system will sort it out. But Texas doesn’t have the same
social views as Massachusetts. Should they be allowed to have different
views and different laws in their state?
what about gay marriage? Foley says that
the majority in Lawrence does not mean to say that
the Constitution gives gays the right to marry.
But how can the Court justify that intellectually?
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