Writing On, Around, and Through Lawrence v. Texas

• Publication year: 2003

38 Creighton L. Rev. 493. WRITING ON, AROUND, AND THROUGH LAWRENCE V. TEXAS

Creighton Law Review

Vol. 38

JOHN G. CULHANE(fn*)

This paper departs from most of the other submissions to this symposium by focusing not on the inter-jurisdictional recognition issues that same-sex marriage raises in challenging and fascinating ways, but on the even less solid ground of predicting judicial decisions. In particular, I explore how Lawrence v. Texas(fn1) and Goodridge v. Department of Public Health(fn2) might be interpreted by courts in trying to decide the basic issue presented by same-sex marriage; namely, whether such unions are constitutionally required?

Just over a year has now gone by since Lawrence was decided, and the case is already beginning to leave a footprint on the case law.(fn3) This paper approaches the issue of Lawrence's legacy by looking at a few cases that have nothing to do with same-sex marriage (at least not directly), and at another - Goodridge itself - which also relies on Lawrence; tellingly, in both the majority and the dissenting opinions. Therefore, Goodridge serves as a good example of the mixed message of Lawrence.

It seems likely that Lawrence and Goodridge will have quite different impacts on the evolving controversy over gay marriage. Most of this paper is devoted to Lawrence, which I argue is already becoming a sort of Rorschach test - courts see in it what they want. This "remarkably opaque"(fn4) decision itself is therefore the best place to begin the discussion. I will argue that two features of Lawrence make the case easily avoidable as precedent by courts unsympathetic to the legal status of the GLBT community. First, the Court's decision to anchor the holding in substantive due process instead of equal protection means that those seeking to invoke Lawrence will have to satisfy a court that the right they seek to have vindicated is fundamental. Equal protection arguments rely on disparity of treatment between two identifiable groups, and are therefore analytically simpler and cleaner. Second, the due process argument itself in Lawrence is difficult to apply to other contexts, both because of the inherent elasticity of the concept, and because Lawrence stopped just short of declaring the right to same-sex intimacy to be fundamental.

1. READING LAWRENCE

As is by now well-known, Lawrence declared that gay men and lesbians are "entitled to respect for their private lives."(fn5) Such respect means that the state cannot criminalize consensual, private sexual conduct between two members of the same sex. The Texas statute in controversy made criminal sexual conduct between members of the same sex, but contained no parallel proscription for opposite-sex couples.(fn6) In a decision of staggering rhetorical breadth, the Lawrence court declared that decisions about sexual intimacy are within the liberty interests protected by the due process clause of the Fourteenth Amendment,(fn7) and overruled its own seventeen-year old decision in Bowers v. Hardwick,(fn8) which had held to the contrary.

When Lawrence was announced, it was hailed for the sweep of its reach and language.(fn9) By locating its decision in substantive due pro-cess, the Supreme Court made clear that the defect in the Texas law was not just that it treated gay people differently from heterosexuals, but that a law needed a better basis than an insufficiently specified "morality" to justify depriving gays of the liberty to express themselves in private, sexual conduct.(fn10) Given that the Court was eager to repudiate Bowers - which, it correctly recognized, stood off to one side of the Court's jurisprudence on matters of privacy - it is not surprising that due process, rather than equal protection, was used. Bowers, after all, was an unsuccessful due process claim.

Justice O'Connor, whose concurring rhetoric in Lawrence suggests that she, too, regrets the decision in Bowers, preferred to focus on the narrower and perfectly sufficient ground that the Texas law treated homosexual and heterosexual conduct differently with no justification for doing so besides general moral disapproval.(fn11) Thus, her concurrence is from the Romer v. Evans(fn12) school of equal protection, which prohibits distinctions that are explainable only by animus against the group targeted.(fn13)

While the reach of equal protection - which depends on finding disparate treatment - is narrower than that of substantive due process in theory, in practice it is difficult to predict the reach of this more nebulous concept.(fn14) In the context of abortion rights, for exam-ple, the Court stated "intimate and personal choices . . . central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment."(fn15) But that sweeping statement led to a dead end in the Court's decision that one does not have a constitutional right to end one's own life through physician-assisted suicide; in that setting, the Court "required . . . a 'careful description' of the asserted fundamental liberty interest."(fn16)

Indeed, the tension between Bowers and Lawrence itself reflects the Court's difficult-to-explain course on matters of liberty and privacy: while Bowers defined the interest in question quite narrowly (whether there was a fundamental right to same-sex sodomy),(fn17) Lawrence grasped that the interest needed to be broadly defined as one's right to make decisions about the most intimate acts of self-expression and definition.

The Lawrence Court rightly saw Bowers as a kind of anomaly.(fn18) That case aside, the key to success in due process cases is to get close enough to the core of privacy cases. But what are the values and rights that the Court protects at that core? They have to do with marriage, procreation, and, as it's now clear, sexual privacy. If one is looking for further positive signs from Lawrence, surely the central appearance of Eisenstadt v. Baird(fn19) is good news; because that case is about the right of individuals, not just married persons, to make the fundamental choice about whether to have children(fn20) and, the Lawrence court now concludes, with whom one wishes to be or become sexually intimate.(fn21) Reading Eisenstadt through the lens of Lawrence suggests an expansive view of the rights of same-sex couples.

In sum, Lawrence recognizes that the Bowers approach is as "demeaning"(fn22) as it is narrow, and that the liberty afforded by the 14th Amendment takes in the right to "control a personal relationship that . . . is within the liberty of persons to choose . . . ."(fn23) And the expression of sexuality "can be but one element in a personal bond that is more enduring."(fn24)

But a closer reading of Lawrence reveals limitations that have already given courts license to ignore the decision even where it seems most applicable. The most glaring problem is the Court's failure to invoke the talismanic "fundamental rights" language that generally grounds decisions based on substantive due process. Justice Scalia did not miss the chance to point out this odd omission in his dissent.(fn25) But one simply cannot read the decision in Lawrence without gaining the impression that the Court meant that sexual intimacy was a fundamental right, even if it avoided saying as much directly.

The most straightforward judicial acknowledgement of the problem that the resultant ambiguity creates for courts comes from an unlikely source: the United States Court of Appeals for the Armed Forces. In United States v. Marcum,(fn26) the court addressed the issue whether non-forcible sexual acts between a sergeant and a subordinate were constitutionally protected as a result of Lawrence. It noted that courts interpreting the decision were in disagreement as to whether the rational basis test applies to laws challenging private sexual conduct, or whether the strict scrutiny brought to bear where fundamental rights were implicated governed.(fn27) Noting that the decision could be read to support either position, the court declined to make this binary choice. Rather, the court concluded, "[w]hat Lawrence requires is searching constitutional inquiry."(fn28) Such an inquiry requires transcending what the court called the...