Having now read Lawrence v. Texas I have lots of thoughts, which I'll be putting up in no particular order througout the day. Here's the first one: Is Justice Kennedy trying to be Chief Justice Warren in Brown v. Board?

Here's why I ask that. Both opinions are very short on the kind of detailed doctrinal analysis that is characteristic of most SCOTUS opinions. Brown famously so, and Lawrence follows that lead. For example, as Justice Scalia's dissent points out, the opinion elides a lot of doctrinal differences between the Right to Privacy holding in Griswold v. Connecticut (which is based on penumbras of specific constitutional amendments in the Bill of Rights), the Equal Protection holding in Eisenstadt v. Baird (which is based on the Equal Protection Clause of the 14th Amendment), and the Substantive Due Process claim in Roe v. Wade (which is based on the Due Process Clause of the 14th Amendment). As a result, when the Court claims that these opinions reveal that "the state of the law . . . when the Court considered Bowers v. Hardwick [was that] the reasoning of Griswold could not be confined to the protection of married adults," (p5) its not clear what the relevant reasoning of Griswold was. There were lots of different reasons in those opinions.

Now, there are some really smart guys up there working for Justice Kennedy, and Justice Kennedy is no dim bulb himself. That chambers knows how to do detailed doctrinal argument, but they didn't. They made broad, general points about well known cases. The opinion also spent a lot of time -- in fact, most of the opinion -- discussing the history of homosexual sodomy law, our evolving standards of decency, and the harms sodomy laws inflict upon homosexuals.

Brown does exactly the same thing, and my guess is that the similarity is no accident. Kennedy wrote Lawrence like Brown for the same reason Warren wrote Brown like he did: so that every person in America could read it and understand it. Lawrence, like Brown is a political statement that discrimination against a minority group by a benighted minority (more on that later) will simply not be tolerated by the Court. That's why the Court ignored O'Connor's suggestion in her concurrence, and took the extraordinary step of avoiding a way to decide this case without overruling Bowers. Bowers "demean[ed] the lives of homosexual persons" (p 15), and the Court would stand for it no longer.
- posted by Tom Sawyer @ 10:10 AM