Nancy J. Knauer (Temple University - Beasley School of Law) has posted LAWRENCE v. TEXAS: When Profound and Deep Convictions Collide with Liberty Interests (Cardozo Women's Law Journal, Vol. 10, p. 325, 2004) on SSRN. Here is the abstract:
This Essay offers a brief analysis of Lawrence v. Texas, arguing that Justice Kennedy's recognition of a liberty interest is preferable to the Equal Protection analysis urged by the Petitioners and advanced by Justice O'Connor. Equality arguments based on orientation and group affiliation in the absence of a core right to sexual autonomy reinforce a view of stable gay identities that is ultimately disingenuous and disempowering. After seventeen years of attempts by pro-gay advocates to bifurcate conduct from status and sidestep Bowers v. Hardwick, Justice Kennedy's majority opinion has conclusively put the sex back into homosexual. Under Equal Protection analysis, the state of being homosexual precedes and can remain independent from sexuality. Lawrence has armed this otherwise ethereal Equal Protection homosexual with a liberty interest in her individual sexual autonomy and thus reacquainted the class with its defining feature - same-sex desire.
Lawrence will not spell the end to the legal and social disabilities imposed on those who experience and/or act upon same-sex desire, just as the 1973 decision of the APA to declassify homosexuality as a mental illness did not lead to the wholesale dismantling of sodomy laws and the broad enactment of anti-discrimination measures. The history of the regulation of same-sex desire in the United States is one of overlapping and mutually reinforcing prohibitions. The removal of the Constitutionally permissible stigma of criminality is a necessary step, but, as with the classification of homosexuality as a mental disorder, the criminal status of homosexual conduct was never the only justification for the social and legal disabilities imposed of gay men and lesbians. Criminalization reflected the strong moral and religious disapproval of same-sex sexuality. Such disapproval will continue long after the Texas Homosexual Conduct Law has retreated into memory because, as Justice Kennedy explained, [f]or many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives.
