Constitutional Law Class Notes 4/12/04


Lawrence v. Texas


What 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?


Kennedy 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?


Prostitution 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 about!


The 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?


Most 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!


Why 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.


One 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?


If 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?


So 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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