Lawrence v. Texas and marriage:

a little delayed, but I saw this as I was shifting through my computer- thought I'd post it here for kicks...

The ruling:
Many commentaries are critical that Justice Kennedy failed to clearly articulate: 1) whether there is a fundamental right to consensual sexual activity, and 2) the standard of review applied (strict scrutiny or rational basis). Thus, the critics contend that it is difficult to find the guiding law from this case. I do not agree—there are clear principles in the case:
1) The case rules on Substantive Due Process grounds. The plaintiffs are “free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution.” See beginning of § II. While Justice Kennedy does not go the typical route in Substantive Due Process (finding a fundamental route and then applying strict scrutiny), it is not clear that his chosen route is inadequate. Rather, Kennedy establishes consensual sexual activity within the boundary of protected privacy under the precedents of Pierce v. Society of Sisters, Meyer v. Nebraska, Griswold v. Connecticut, Eisenstadt v. Baird and Roe v. Wade.
2) Bowers v. Hardwick is overturned. This is the precedent case that contained many similar facts to Lawrence. There, as here, police officers observed two adult males engaging in intimate sexual conduct with each other. In Bowers, the court upheld a Georgia sodomy statute. Finding no fundamental right to engage in sodomy, that court applied rational basis review—considering historical roots and the legislature’s valid enforcement of morals.
a. In Lawrence, Kennedy calls into question the historical roots relied upon in Bowers. He also makes it clear that morality alone will no longer serve as a legitimate government purpose in creating legislation. See pg 7 of my printout.
3) The court’s ruling is limited in scope: the case involves “two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle.” This limitation—namely consent and adulthood—is an important to the established precedent on privacy law.
a. Kennedy gives an extended list of what the case is not about; in summary, it does not involve minors, persons that might be injured or coerced, prostitution, or whether the government must give formal recognition to any relationship that homosexual persons seek to enter. From his list, we can see that legislation with purposes including public safety or legal relationships remains valid under Lawrence. What Kennedy says in this opinion is that the court can find no purpose in the Texas sodomy law other than morality. As such, the law cannot survive in light of it’s invading the liberty interest involved.

While this case should certainly make invalid the existing North Carolina sodomy laws, it has no direct on marriage. This is made clear by Kennedy’s insistence that the case does not involve a government’s legal recognition of relationships. However, note Ms. Grossman’s argument in FindLaw that the interest in marrying a person of the same sex is at least as strong as the interest I intimate sexual relations. She notes that it will be strange if the court recognizes a right to all forms of intimate relations without recognizing the right to a “permanent, legally sanctioned” relationship.
I disagree with her reasoning because at center of Lawrence is a privacy interest—and marriage is not a private affair. It is a legally recognized institution, and thus, appropriately in the public sphere. Kennedy argues that the government has no place in the bedroom of consenting adults engaged in non-harmful activity. The liberty interest that protects this conduct is in no way analogous to the liberty interest in marriage. There, a couple seeks a formal recognition of their relationship that extends beyond the private sphere. Indeed, one might say marriage is the public manifestation of a private relationship. Because government is the entity that deems a marriage valid, it is necessarily involved. Conversely, Kennedy could find no legitimate reason for the government’s involvement in adult, consensual sex.
It is my opinion that another case is needed to bridge the gap created (or recognized) by Lawrence between private and public. This will be either an Equal Protection case (marriage laws discriminate against gay couples) or a Substantive Due Process case that finds a fundamental right to marriage extending to gay couples.