Does Lawrences Privacy Rule Extend to the Public Institution of Marriage?
Lawrence was a broad, important decision. But it’s important to remember that it was not a decision about the very public institution of marriage, but rather private, sexual acts. Granted, the Supreme Judicial Court of Massachusetts recently drew upon Lawrence in a case about marriage, but it emphasized equality, not privacy rights. In Goodridge v. Dep’t of Health, it famously held that, under the Massachusetts Constitution, homosexual persons have an equal right to marriage and the benefits of marriage. It was concerned, for example, that gay persons were being relegated to “second class citizen” status because they lacked access to marriage. Thus, its logic arguably resonated most strongly with Justice O’Connor’s concurrence in Lawrence, which raised equality concerns, not with the privacy reasoning of Lawrence. In these uncharted social and legal waters, it’s foolish to make predictions as to which of these arguments, and parallels, will seem most persuasive to the courts — and so
