The Glucksberg renaissance: substantive due process since Lawrence v. Texas.

AuthorHawkins, Brian

TABLE OF CONTENTS INTRODUCTION I. THE RISE AND POTENTIAL FALL OF THE GLUCKSBERG DOCTRINE A. The Restraint Principle B. The Narrowest Description Rule and the Narrow Precedent Corollary C. The History and Tradition Inquiry D. The Tiered Review Rule II. A TALE OF TWO SURVEYS: GLUCKSBERG LIVES, LAWRENCE LANGUISHES A. The Glucksberg Survey 1. Methodology 2. Overall Trends B. The Lawrence Survey 1. Methodology 2. Overall Trends III. THE PERSISTENCE OF THE GLUCKSBERG DOCTRINE, TAKE ONE: DOCTRINAL AND PROCEDURAL EXPLANATIONS A. Procedural Explanations B. Substantive Explanations 1. The "Subject Matter Distinction Theory" 2. The "Avoidance Theory" (a.k.a., the "Abigail Alliance Approach") IV. THE PERSISTENCE OF THE GLUCKSBERG DOCTRINE, TAKE TWO: PRAGMATIC EXPLANATIONS A. The Glucksberg Doctrine as Culture War Counterstrike: Accusations and Evidence B. First Rebuttal: Difficulties in Interpreting Lawrence C. Second Rebuttal: Institutional Restraint D. Final (Partial) Rebuttal: Judicial Management Considerations CONCLUSION INTRODUCTION

On their faces, Washington v. Glucksberg (1) and Lawrence v. Texas (2) seem to have little in common. In Glucksberg, the Supreme Court upheld a law prohibiting assisted suicide and rejected a claim that the Constitution protects a "right to die"; in Lawrence, the Court struck down a law prohibiting homosexual sodomy and embraced a claim that the Constitution protects homosexual persons' choices to engage in intimate relationships. Thus, in both subject matter and result, Lawrence and Glucksberg appear far apart.

The Lawrence Court, however, faced a peculiar challenge in reaching its decision, and its response to that challenge brings Lawrence and Glucksberg into conflict. Only seventeen years before Lawrence, the Court in Bowers v. Hardwick (3) faced essentially the same claim as in Lawrence, but reached the opposite conclusion--that is, Bowers declared that the Constitution provides no protection for homosexual sodomy. The Lawrence Court, therefore, had to justify overruling Bowers while simultaneously supporting its own conclusion.

As it happens, Lawrence did not so much seek to justify overruling Bowers as it sought to eviscerate it. Lawrence challenged nearly every aspect of Bowers, including assumptions found only in one justice's concurring opinion. (4) Most pertinent for this Note is Lawrence's attack on Bowers's method of constitutional interpretation--a method reflecting skepticism about the Supreme Court's authority to use the Due Process Clauses of the Fifth and Fourteenth Amendments to establish constitutional protection for rights not mentioned in the Constitution's text. (5) It is here that Lawrence and Glucksberg collide.

Glucksberg shared Bowers's narrow view of the Due Process Clauses and its similarly restricted approach to interpreting them. This approach comprises five distinct analytical tools, (6) which I will refer to as the "Glucksberg Doctrine."

Although the Lawrence majority opinion never cited Glucksberg, the aspersions Lawrence cast on Bowers inevitably fell with equal force on Glucksberg. Indeed, Lawrence so strongly denounced narrow interpretations of the Due Process Clauses that one might reasonably wonder whether Lawrence intended implicitly to repudiate Glucksberg through its explicit rejection of Bowers. Many commentators have reached essentially this conclusion, predicting that Lawrence would usher in a new era of expanded constitutional freedoms. (7)

So far, the commentators have been wrong. My survey of 102 cases applying Glucksberg since the day the Supreme Court decided Lawrence (the "Glucksberg Survey") indicates that the Glucksberg Doctrine has not only survived Lawrence, but has flourished. (8) Most cases from the Glucksberg Survey ignore Lawrence completely; of the few cases that acknowledge Lawrence and its expansive view of constitutional rights, all but one eventually fall back on the Glucksberg Doctrine's restricted approach. (9)

Furthermore, a second survey of 86 cases applying only Lawrence and not Glucksberg (the "Lawrence Survey") shows that Lawrence's approach to constitutional interpretation has languished on its own merits. (10) With the notable exception of certain decisions granting same-sex couples the right to marry under state constitutions, (11) Lawrence has inspired very little innovation with regard to constitutionally protected rights. (12)

All decisions in both the Glucksberg and Lawrence Surveys come from American courts other than the Supreme Court. Lawrence itself has not reappeared in a Supreme Court majority opinion since the day it was decided. Glucksberg has been mentioned only once in the same time frame, for a point relevant to assisted suicide and not to the Glucksberg Doctrine. (13) Therefore, the Glucksberg and Lawrence Surveys fairly represent the current state of the cases for which they are named.

One might be tempted to argue that the trends of the Glucksberg and Lawrence Surveys evince an epidemic of parochialism in the judiciary--or even a conservative counterstrike in the modern American culture war. While a handful of cases may fit this description, this Note argues that the persistence and expansion of the Glucksberg Doctrine in the wake of Lawrence is a multifaceted phenomenon--and for the most part better explained through Lawrence's own weaknesses than through disdain for gay rights, sexual liberty, or substantive due process in general.

Part I of this Note sets forth the tension between Glucksberg and Lawrence that the lower courts have been forced to confront. More specifically, it describes the Glucksberg Doctrine, its roots in Bowers, and the many ways in which it conflicts with Lawrence. Part II summarizes the methodology and major trends of the Glucksberg and Lawrence Surveys. It shows that (a) most cases applying Glucksberg simply ignore Lawrence, (b) every element of the Glucksberg Doctrine remains alive and well, and (c) application of the Glucksberg Doctrine most often leads courts to deny the existence of a new constitutional right. It also shows that analysis purely under Lawrence, and not under Glucksberg, usually leads to the same conclusion.

The remainder of the Note wrestles with the various possible explanations for the results of the Glucksberg and Lawrence Surveys. It places most emphasis on explaining the Glucksberg Survey because it embodies courts' choices between two highly conflicting cases (Glucksberg and Lawrence). This calls for more justification than simply finding Lawrence distinguishable and Glucksberg not applicable--a common occurrence in the Lawrence Survey. Accordingly, Part III evaluates various theories under which Lawrence and Glucksberg might coexist. Each of these theories, if reflected in the Glucksberg Survey, would eliminate or reduce the anomaly inherent in Glucksberg's persistence. Part HI concludes that these theories fail to describe how courts have actually treated Lawrence and Glucksberg.

Part IV discusses pragmatic explanations for Glucksberg's persistence and Lawrence's marginalization. It begins by looking at the possibility that some courts have intentionally resisted Lawrence because of its cultural implications. It finds evidence suggestive of such behavior in certain cases, but concludes that such cases are not necessarily best interpreted as the product of cultural backlash. Rather, a number of benign explanations are more persuasive, including Lawrence's lack of guidance, lower courts' desire to leave the biggest decisions to the Supreme Court, and Glucksberg's value in handling the frequently bizarre claims of constitutional rights that courts routinely confront.


    American legal circles have long debated whether the Constitution protects "unenumerated" rights--that is, rights not explicitly mentioned in the text of the Constitution itself--and whether courts have the authority to enforce such rights. Since the mid-nineteenth century, the Supreme Court has been willing to assume that unenumerated rights exist, (14) and many decisions establishing and protecting such rights remain in force today. (15) These cases ground themselves in the belief that some laws violate the spirit of the Constitution, even though they may not run afoul of its letter. (16) This principle is said to emanate from the protection given to "liberty" in the Due Process Clauses of the Fifth and Fourteenth Amendments, (17) and is commonly known as substantive due process. (18)

    While the threshold question of whether unenumerated rights exist is important in theory, it quickly meets a practical wall. Some substantive due process rights are taken for granted by the American public, such that no one will likely ask the Supreme Court to overturn the decisions establishing such rights. (19) Thus, the question of whether unenumerated rights exists devolves to a more functional inquiry: Assuming the existence of unenumerated rights, how does a court go about discerning the existence and scope of such rights? From the mid-1960s to the mid-1980s, the Supreme Court's use of substantive due process to strike down laws restricting contraception and abortion brought these questions to the forefront, (20) but no consistent rationale emerged. (21)

    From this confused climate emerged Bowers v. Hardwick. (22) Bowers, decided in 1986, centered around the assertion that substantive due process should protect a homosexual person's choice to engage in sodomy, and thus presented the Court with another opportunity to dispel the confusion regarding unenumerated rights. The Bowers Court seized this opportunity with surprising candor. (23) In refusing to establish constitutional protection for sodomy, the five-justice majority treated substantive due process as inherently suspect and in need of significant external constraint. (24) In fact, Bowers's approach to substantive due process struck some commentators as so severe that...

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