The Walking Dead: How the Criminal Regulation of Sodomy Survived Lawrence v. Texas

Abstract

Eighteen years after the Supreme Court held in Lawrence v. Texas that a law criminalizing sodomy violated the constitutional guarantee to substantive due process, individuals are still arrested, prosecuted, convicted, and incarcerated pursuant to statutes that are the material equivalent of the one at issue in Lawrence. Though this seems both strange and unfair, it is neither unusual nor accidental. Because the constitutional order renders the judiciary a passive institution and radically fragments authority across a polycentric collection of governments, noncompliance with judicial decisions is endemic to American institutional design