Glucksberg vs. Lawrence
siegel at law.law.sc.edu
Wed Mar 17 11:59:45 PST 2004
I agree with both Rick and Trevor that the Lawrence opinion is often vague and
confusing. I also agree with Rick that some of the ambiguities and omissions in the
opinion are likely intentional. Nonetheless, it is an enormous exagerration to suggest
that Lawrence offers no analysis, guidance, or explanation for its SDP holding.
In the six paragraphs the precede the Court's discussion of Bowers (the first six
paragraphs of analysis), the opinion references and discusses the contraception and
abortion cases, explains that those opinions were grounded in two constitutional
commitments (a commitment to spatial privacy and a commitment to indvidual
autonomy in making our most personal and important life decisions), and then explains
why those commitments are similarly endangered when the government seeks to
criminalize private consensual sexual intimacy. This method of reasoning in SDP cases
(call it the autonomy approach [as many have], the philosophical approach, the liberty
approach, whatever you want) should be familiar, as it runs through the Court's
decisions in Griswold, Eisenstadt, Carey, Roe, Casey, Stanley, etc. (though often in
tandem with the historical approach the Court validated in Glucksberg). You can
disagree with this approach (1) on the merits or (2) because you think that Glucksberg
decisevly broke with this approach, but it is clear what constiutional tradition and
methods of analysis Justice Kennedy is seeking to evoke.
On 17 Mar 2004 at 8:12, Rick Duncan wrote:
> Thanks, Trevor for your thoughtful post.
> We agree (I think) that Glucksberg is still good law
> and states a two-part historical test for determining
> "fundamental" rights under SDP.
> We agree (I think) that Lawrence does not attempt to
> state a rule or a test or a methodology for
> determining "fundamental" rights under SDP. Instead,
> Lawrence talks vaguely about "liberty interests" that
> receive constitutional protection against criminal
> prohibitions when the state is unable to advance any
> legitimate governmental interest in support of the
> criminal proscription. Or at least that is what the
> opinion says.
> We agree (I assume) that Lawrence explicitly says it
> "does not involve minors...[and] does not involve
> whether the government must give formal recognition to
> any relationship that homosexual persons seek to
> Lawrence, in my view, was an opinion written
> intentionally to be as narrow as the facts of the case
> before it. It intentionally avoided even mentioning
> "fundamental" rights under SDP or Glucksberg, because
> it did not wish to make new law in this area.
> Certainly it will be cited by plaintiffs seeking to
> advance homosexual marriage in the courts, and the
> opinion is so vague that pls will assert that it means
> everything and anything. But the opinion as written
> provides little if any doctrinal guidance on
> fundamental rights or even mere liberty interests.
> Rick Duncan
> Rick Duncan
> Welpton Professor of Law
> University of Nebraska College of Law
> Lincoln, NE 68583-0902
> "When the Round Table is broken every man must follow Galahad or
> Mordred; middle things are gone." C.S.Lewis
> "I will not be pushed, filed, stamped, indexed, briefed, debriefed, or
> numbered." --The Prisoner
> Do you Yahoo!?
> Yahoo! Mail - More reliable, more storage, less spam
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
More information about the Conlawprof