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Lawrence as an Eighth Amendment Case: Sodomy and the Evolving Standards of Decency


Sheldon Bernard Lyke


Whittier Law School

September 12, 2009

William & Mary Journal of Women and the Law, Vol. 15, No. 3, 2009

Abstract:     
This Article offers an alternate reading of Lawrence v. Texas, the 2003 U.S. Supreme Court case that struck down the Texas sodomy statute that criminalized private, consensual, and adult same-sex intercourse. While most scholars discuss Lawrence as a substantive due process case and struggle to find meaning in the ambiguity of the decision’s language, I propose that Lawrence is better read as an Eighth Amendment case. This Article argues that the majority opinion analyzed the constitutionality of the Texas sodomy law as it would analyze the cruelty and unusualness of a criminal law in an Eighth Amendment evolving standards of decency case. The Lawrence Court not only used objective indicators to find a U.S. consensus against sodomy laws but was also cognizant of foreign nations that refused to criminalize sodomy. Additionally, I suggest that the Eighth Amendment and the evolving standards of decency were on the minds of the Justices when deciding Lawrence, and at a minimum, the case was decided in the amendment’s shadow. The Justices were exposed to an evolving standards of decency analysis in both written briefs and oral arguments, and the majority opinion used language evocative of emergence and evolution. I discuss the importance of this alternative reading of Lawrence and begin a conversation on the possibilities of extending an evolving standard of decency analysis to issues other than sodomy and areas beyond criminal law.

Number of Pages in PDF File: 29

Keywords: Lawrence v. Texas, Eighth Amendment, sodomy, evolving standards of decency, criminal law, international law, foreign law, Supreme Court of the United States, homosexual, gay, lesbian

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Date posted: September 13, 2009 ; Last revised: August 31, 2010

Suggested Citation

Lyke, Sheldon Bernard, Lawrence as an Eighth Amendment Case: Sodomy and the Evolving Standards of Decency (September 12, 2009). William & Mary Journal of Women and the Law, Vol. 15, No. 3, 2009. Available at SSRN: http://ssrn.com/abstract=1472264

Contact Information

Sheldon Bernard Lyke (Contact Author)
Whittier Law School ( email )
3333 Harbor Blvd.
Costa Mesa, CA 92626
United States
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