A General Sovereign/Public Employer Distinction: Should Garcetti v. Ceballos Govern Public Employment Cases Concerning Off-Duty Sexual Conduct Instead of Lawrence v. Texas?
45 Pages Posted: 4 Jun 2019
Date Written: May 6, 2019
In the landmark case of Lawrence v. Texas (2003), the Supreme Court ended the criminalization of homosexual behaviors; however, the Court did not clearly state whether or not sexual privacy was a fundamental right or a specially protected liberty interest under the 14th Amendment. The federal circuit courts have grappled with the Supreme Court's ambiguous language in Lawrence, specifically in the context of public employment cases involving sexual conduct between police officers. The Ninth Circuit and the Fifth and Tenth Circuits disagree on whether Lawrence establishes a fundamental right to sexual privacy and how that right should apply to public employment cases.
In this article, I explore that disagreement in depth, and I argue that the circuit courts missed the main issue in these cases. Regardless of whether Lawrence recognized a fundamental right to sexual privacy or not, I argue that courts should apply a general government sovereign/government employer distinction akin to the one for free speech in the public employment context that the Supreme Court articulated in the Garcetti v. Ceballos, enabling them to avoid the inconclusive problem of interpreting Lawrence.
Keywords: constitutional rights, sexual privacy, Lawrence v. Texas, substantive due process, public employment law, employment law, unenumerated rights
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