28 Pages Posted: 4 Jun 2008
Date Written: 2008
In Lawrence v. Texas, the Supreme Court declared that Texas's statute criminalizing deviant sexual intercourse between individuals of the same sex was unconstitutional. The Court opined that Texas's asserted interest in expressing moral disapproval of homosexual conduct was illegitimate. This paper discusses the First Amendment implications of the Court's morality-based rationale. Taken seriously, Lawrence has a significant effect in this area, undermining certain First Amendment doctrines while strengthening others.
The Article first addresses what the Court said about morality and lawmaking and also what it must have meant. It concludes that the Court held that morality can still play a role in lawmaking but it cannot be the sole or dominant rationale for a law. The Article next turns to Lawrence's implications for First Amendment doctrine focusing in particular on obscenity and its hate speech.
While not universally accepted, it is conventional wisdom that the Court's decisions allowing the regulation of obscene material are largely based on moral disapproval of that type of expression. If that is the case, a faithful application of Lawrence would at a minimum require a reexamination of current doctrine. Thus, considering the Court's obscenity jurisprudence illustrates Lawrence's potential to undermine certain aspects of First Amendment doctrine.
Conversely, consideration of hate speech restrictions demonstrates how Lawrence could strengthen existing doctrine in other contexts. The Court has generally not been favorably disposed to hate speech legislation when the speech at issue did not amount to fighting words or their equivalent. The Article suggests that the Court's position as to this issue will be strengthened when Lawrence's prohibition on primarily morality-based legislation is added to the mix.
Keywords: First Amendment, Lawrence v. Texas
JEL Classification: K10
Suggested Citation: Suggested Citation
Allen, Michael Patrick, The Underappreciated First Amendment Importance of Lawrence v. Texas (2008). Washington and Lee Law Review, Vol. 65, No. 3, 2008. Available at SSRN: https://ssrn.com/abstract=1140242