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

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.

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