Living with Lawrence

Abstract:     
In this Article, Professor Nan D. Hunter examines Lawrence v. Texas as a legal opinion and a cultural document. Professor Hunter argues that, as a legal opinion, Lawrence marks the beginning of a new approach to both substantive due process and equal protection analysis, in which flexible standards of review replace rigid definitions of fundamental rights and suspect classifications. As a cultural document, Lawrence illustrates a new principle of "equal liberty" and a neoliberal vision of civil rights.

Professor Hunter begins by scrutinizing the substantive due process analysis in Lawrence. She argues that the majority opinion reveals a new due process framework. In this new framework, liberty interests replace the right to privacy established in Griswold and its progeny. The Court focuses on the government's basis for legislation, rather than whether a law infringes on a fundamental right. The liberty interest protected by the Due Process Clause guarantees that there are certain areas into which the government may not intrude without some justification other than moral disapproval.

Liberty was the major chord of the Court's opinion in Lawrence; equality was its minor chord. In the second part of this Article, Professor Hunter examines how equal protection concerns reinforced the Court's due process analysis. Professor Hunter concludes by suggesting that Lawrence illustrates a new political and cultural paradigm. In this "neoliberal civil rights" paradigm, liberty and equality combine to keep the government out of private lives and ensure equal opportunity for all. The exact contours of this paradigm have yet to be discovered; they will be created by the courts, scholars, and practitioners who are now living with Lawrence.

Number of Pages in PDF File: 34

Keywords: Equal protection, civil rights, sexual preference, substantive due process

JEL Classification: K19, K39

Accepted Paper Series