Living with Lawrence

Abstract

This Article will proceed in three steps. First, I will examine the Court\u27s treatment of liberty. I see Lawrence as marking the emergence of a new approach to substantive due process analysis, one that has been simmering in the concurring opinions of Justices Souter, Stevens, and Kennedy for the last decade. These three Justices apparently now have a majority for extending meaningful constitutional protection to liberty interests without denominating them as fundamental rights. They also appear to be jettisoning, at least prospectively, a special category for privacy rights. Second, I will turn my attention to the ramifications of Lawrence\u27s equality subtext. The only equal protection opinion per se is the concurring opinion of Justice O\u27Connor, which is significant for its elaboration and clarification of the heightened rational-basis review standard the Court used in Romer v. Evans. Justice O\u27Connor\u27s opinion explicitly adopts a new form of rational-basis review triggered by indicia of animus toward the group being subjected to adverse treatment. Third, I aspire to read between all its lines and unravel the larger meanings of the liberty-equality dialogue embedded in the decision. In my view, the Lawrence opinion is in perfect tune with its times, articulating a new principle of equal liberty and resonating with a neoliberal political vision of civil rights