43 Pages Posted: 24 Nov 2003 Last revised: 7 Nov 2010
Date Written: November 5, 2010
The Supreme Court's recent decisions in Lawrence v. Texas and Grutter v. Bollinger are the most significant cases decided under the Fourteenth Amendment in the last 30 years. Lawrence makes a number of fundamental changes to the doctrine of substantive due process, while Grutter works equally important changes in equal protection doctrine. This article identifies the changes wrought by Lawrence and Grutter, describes the relation among those changes, and summarizes the underlying jurisprudential revolution that these decisions represent.
Justice Kennedy's opinion in the Lawrence case makes the following changes in the interpretation of the Due Process Clause:
- The Right to Privacy is not defined by reference to specific American traditions, but rather by reference to society's "emerging awareness" of the effect of laws on people's private lives.
- The Right to Privacy includes "certain intimate conduct" not because the sexual act itself usually occurs in private, but because of the central importance of sexual relationships in people's lives.
- The Court will look to legal developments in other nations, in particular decisions of the European Court of Human Rights, in defining our fundamental rights.
- Morality, standing alone, is not a sufficient basis for prohibitory legislation. Instead, the state must explain how behavior is harmful before it can make it unlawful.
Justice O'Connor's opinion in the Grutter case, as well as her concurring opinion and Justice Kennedy's majority opinion in Lawrence, make or confirm the following changes in the interpretation of the Equal Protection Clause:
- The level of scrutiny that the Court applies in evaluating the constitutionality of laws under the Equal Protection Clause varies with the context. Neither strict scrutiny not rational basis is applied the same way in all cases.
- Laws that intentionally stigmatize groups are scrutinized more strictly than laws that do not.
- Laws that inhibit people's personal relationships are scrutinized more strictly than laws that do not.
- Moral disapproval of a group or its actions standing alone is not a sufficient reason for legislation that discriminates against the group.
- Race-based affirmative action in university admissions is constitutional because it is necessary to train leaders from all segments of society.
In both Lawrence and Grutter the Supreme Court focused on the effect that its decisions would have on society and on the lives of individuals. This represents a shift away from reliance on tradition and towards consequentialist analysis in the interpretation of the Constitution. In my opinion the doctrinal and jurisprudential changes in Lawrence and Grutter are a welcome development that will help unlock human potential.
Keywords: due process, equal protection
Suggested Citation: Suggested Citation
Huhn, Wilson Ray, The Jurisprudential Revolution, Unlocking Human Potential in Grutter and Lawrence (November 5, 2010). WILLIAM & MARY BILL OF RIGHTS JOURNAL, Vol. 12, pp. 65-115, 2004. Available at SSRN: https://ssrn.com/abstract=466700