What Does Lawrence v. Texas Hold?
There appears to be some confusion about what the Supreme Court’s recent decision in Lawrence v. Texas actually holds. The confusion has been encouraged by Justice Scalia’s dissenting opinion, which, I think, systematically misreads Justice Kennedy’s majority opinion. For the record, Lawrence extends the fundamental right of privacy to same-sex intimate relationships. It does not strike down Texas’ sodomy law on the ground that it fails the test of rationality, as Justice Scalia seems to assume. Nor does it hold that appeals to morality cannot be a legitimate government interest under the rational basis test for ordinary social and economic legislation. Rather, it holds only that when a fundamental right or interest is involved moral disapproval is not a sufficient interest to overcome the fundamental right. In Lawrence, Justice Kennedy argues that Eisenstadt, Carey, and Roe each extended the rights of intimate association and decisional privacy protected by Griswold beyond married adu
