The (Neglected) Importance of Being Lawrence: The Constitutionalization of Public Employee Rights to Decisional Non-Interference in Private Affairs

Abstract

This paper argues that whatever debates continue to stew regarding the true meaning of Lawrence v. Texas, at the very least, Lawrence represents the recognition of an individual's heightened interest in decisional non-interference in private affairs. This is an important constitutional development since a problem under the doctrine of unconstitutional conditions only arises when the government offers a benefit, like government employment, conditioned on the waiver of a preferred constitutional right. Thus, a government employer, post-Lawrence, should be prohibited, under the doctrine of unconstitutional conditions, from firing a government employee who exercises her rights to decisional non-interference in private affairs.

However, the current protections for public employee speech rights under the Connick/Pickering analysis do not adequately safeguard these emerging rights to decisional non-interference. The proposed modified Pickering test discards the unnecessary public concern test for these post-Lawrence substantive due process cases and, in the first instance, balances the employee's right to decisional non-interference in private affairs against the government's interest in operating an efficient governmental service for the public. The upshot, and a much neglected aspect of Lawrence, is that over 21 million federal, state, and local United States' employees will enjoy a significant expansion of their rights to be free from arbitrary and capricious government employer interference in their personal and private lives.

Keywords: privacy, Connick, Pickering, unconstitutional conditions, public employment, employee, substantive due process, Lawrence v. Texas, San Diego v. Roe

JEL Classification: J79, K31