Is Lawrence Libertarian?

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