Is Lawrence Libertarian?

31 Pages Posted: 8 Aug 2016

See all articles by Dale Carpenter

Dale Carpenter

Southern Methodist University - Dedman School of Law

Date Written: 2004

Abstract

The Supreme Court’s decision in Lawrence v. Texas is no doubt a shock to those pursuing an antihomosexual agenda. To most Americans, however, the decision is less an ipse dixit announcing radical social change than it is a belated recognition of what they had already learned about the humanity and dignity of gay people. Rather than radically changing constitutional principle, the Court has corrected its own erroneous understanding of the facts that underlay its application of constitutional principle in the past. Rather than leading the nation, the Court has caught up to it.

Part I of this essay lays out the broad libertarian reading of Lawrence, drawing on Scalia's dissent and on an article by a leading libertarian scholar, Randy Barnett. Part II criticizes the broad libertarian reading as lacking internal, doctrinal, historical, and normative persuasiveness. Properly understood on its own terms, and in its doctrinal, historical, and normative setting, Lawrence is limited both in its departure from what preceded it and in its immediate effects on many other controversies.

Keywords: Lawrence v. Texas, Supreme Court decisions, right to privacy, protected liberty rights, gay rights, homosexuals – law, equal protection

Suggested Citation

Carpenter, Dale, Is Lawrence Libertarian? (2004). Minnesota Law Review, Vol. 88, No. 5, 2004, Available at SSRN: https://ssrn.com/abstract=2819125

Dale Carpenter (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

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