Equality with Exceptions? Recovering Lawrence’s Central Holding
In the eleven years since the Supreme Court handed down itsLawrence v. Texas ruling, state courts have not consistently adhered to the decision’s implicit rejection of laws that regulate based on animus alone. Relying on the Court’s explicit limitation of its decision to cases that do not involve minors, “persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused,” public conduct, prostitution, government recognition of same-sex relationships, and practices not “common to a homosexual lifestyle”-the so-called Lawrence exceptions-a number of states have continued to use archaic antisodomy laws to police conduct they see as morally reprehensible. This Comment examines the interpretation and application of the Lawrence exceptions by state courts, arguing that by maintaining discriminatory prosecution and punishment schemes for conduct deemed to fall within the exceptions, states run afoul of the core antidiscriminatory logic ofLawrence and of the Court’s earlier ruling in Romer v. Evans. My analysis addresses not only whether laws that fall within theLawrence exceptions discriminate on the basis of sexual orientation, but also whether they enable or invite discrimination along gender- and race-based lines.
While some commentators have addressed Lawrence‘s exceptions for conduct involving minors, potentially coercive or injurious relationships, and, to a lesser extent, the exception for same-sex marriage, there is a lack of scholarship on how the Lawrenceexceptions have affected so-called crime against nature laws-antisodomy laws which often survived in some form after 2003 because of the exceptions identified by the Court. This Comment addresses this gap, using crime against nature laws as an example to suggest that the Lawrence exceptions continue to enable and invite discrimination that contravenes the principles of Lawrence andRomer. Arguing that this trend cuts against the Court’s intent in deciding Lawrence, I draw on an analogue from First Amendment jurisprudence to propose a framework with which courts can adhere to Lawrence‘s antidiscriminatory principles.