The Supreme Court in Lawrence v. Texas held that same-sex couples have a constitutional right to engage in sexual intimacy, free of regulation by the state. It seems to me that Mr. Greene ignores the actual rationale underlying the substantive due process ruling in Lawrence v. Texas—the rationale that was expressly set forth by Justice Kennedy and found strong support in prior case law—in order to posit a different rationale that he then finds problematic as applied to the death penalty. This makes for an interesting intellectual exercise, and I do not disagree with the background observation in Mr. Greene’s piece that the courts are moving toward giving special scrutiny to laws that discriminate against gay people. Laws drawing that line are beginning to take on the same kind of cultural resonance as discrimination based on race or sex, and Lawrence certainly fueled that phenomenon. But it is also important to be clear what the Court actually had in mind as a rationale, and see whether that rationale is legitimate and supportable.

What the Court said in Lawrence was that decisions by consenting adults to engage in particular forms of sexual intimacy in a private setting are constitutionally protected from regulation by the state. That conduct merits protection, the Court says, because it is central to the formation of same-sex relationships that the Court repeatedly analogized to marriage. In other words, the Court recognized that long-term gay and lesbian relationships exist, that sexuality plays the same central role in cementing those relationships that it does in heterosexual marriages, and that the substantive liberty protections implicit in the Bill of Rights prevent the State from intruding into homes in order to regulate sexual conduct in either setting.

Thus, Lawrence was a case recognizing, based on longstanding precedent, that substantive due process protects core aspects of families. It was not, as Mr. Greene posits, a case about the cultural status of being gay. The Court points out that the “most pertinent” precedent was Griswold v. Connecticut, the landmark ruling striking down -- on substantive due process grounds -- a state law prohibiting married couples from using contraceptives. Justice Kennedy noted that the Griswold Court had “placed emphasis on the marriage relation and the protected space of the marital bedroom.” He then noted how the same protections had been extended to unmarried couples in 1972 in Eisenstadt v. Baird.

There followed a critique of Bowers v. Hardwick, the 1986 case overruled in Lawrence. That critique was keyed to the connection between sexual conduct and marriage or relationships analogous to marriage, and was not about the personal beliefs of the petitioners or the cultural status of being “gay”:

To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. . . . The statutes [involved in Bowers and Lawrence] do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. . . . It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.

These and other passages make clear that the Court claimed power under the Fourteenth Amendment to protect the integrity of same-sex relationships and the families formed around them. Moreover, as the Court also made clear, such protection is not a novelty in constitutional law. To the contrary, the outlier in the Court’s substantive due process jurisprudence was Bowers, where the Court backed away from the obvious conclusion, given Griswold, that choices about sexual intimacy must themselves be constitutionally protected as well.

Nor is it particularly problematic or illegitimate that the Court should extend the protections of substantive due process to conduct central to the formation and preservation of loving marital or quasi-marital bonds. From the beginning of its substantive due process jurisprudence (leaving aside an early fixation on protection of property rights), the Court focused on two main areas meriting protection—the family, and a person’s control over his or her own body. Sodomy laws implicate both strands of substantive due process jurisprudence, but the Court was right to emphasize the family, because that emphasis captured the essence of what was so offensive about the law: it told two consenting adults in a committed relationship that they were not allowed to engage in sexual intimacy with one another.

So while it is true that Lawrence did not adopt John Stuart Mill’s broad “harm principle,” the actual basis and limits of the Court’s holding are not that mysterious. The Court said that, as a general rule, the Constitution frowns on any “attempts by the State, or a court, to define the meaning of [a] relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects.” Relationships are what matters, and they deserve protection under the Fourteenth Amendment.

There is thus no need that I can see to suggest that same-sex sexual conduct is protected because it amounts to expressive conduct, conveying an idea or a social and cultural status that government may not seek to suppress. Mr. Greene suggests that part of the difficulty of understanding the Court’s rationale stems from the Court’s statements that it was not recognizing a right to formal legal recognition of same-sex marriage. But that is no answer. The Lawrence Court did not reject a constitutional right to same-sex marriage. It merely noted that the case raised no issue about formal legal recognition of same-sex relationships, leaving that issue to be decided down the road. That aspect of the decision, defining what was and was not before the Court, reflects a standard judicial approach that is hardly surprising or troubling. It certainly does not suggest that the Court was dissembling when it said, so memorably, that it would not allow the states to continue demeaning the lives of some of their citizens by criminalizing the intimacies of same-sex couples that had formed enduring personal bonds.

Paul M. Smith is a partner at Jenner & Block in Washington, D.C. He argued argued petitioners' case in Lawrence v. Texas in the Supreme Court, and served as Editor-in-Chief of Volume 88 of The Yale Law Journal.

Preferred Citation: Paul M. Smith, What the Court Said in Lawrence, Yale L.J. (The Pocket Part), May 2006, http://yalelawjournal.org/forum/what-the-court-said-in-lawrence.