Lawrence's Quintessential Millian Moment and Its Impact on the Doctrine of Unconstitutional Conditions

An unforeseen Millian moment recently occurred at the United States Supreme Court, initiated by one of the Supreme Court's conservative members in the dramatic and singular case of Lawrence v. Texas. While many commentators have looked on with puzzlement, dismay, and wonder at Justice Kennedy's cryptic opinion for the majority, this article reads Lawrence as clearly embracing a Millian notion of personal autonomy, grounded in the liberty-affirming exhortation that, over himself, over his own body and mind, the individual is sovereign. Of course, it is all well and good to speak in the often ethereal language of moral philosophy. In more practical terms, the Supreme Court appears to have achieved this jurisprudential recalibration by countenancing an original approach to substantive due process, which has three important dimensions. First, Lawrence makes a subtle, innovative move by formally recognizing the overlapping nature of equal protection and substantive due process. Second, and based on this recognition, Lawrence imports from equal protection analysis into the substantive due process context a more searching form of rational basis review (sometimes called rational review with bite) to comparatively analyze the importance of the individual's personal and private relationships with the state's purported interests. Under this approach, the Court is able to give substantial weight to an individual's liberty interests in forming and maintaining private intimate associations. Third, rather than applying traditional labels to individual rights, such as fundamental interests and liberty interests, the Court softens the hard edges of the normal tiered approach and engages in a more informal constitutional balancing of the relevant state and individual interests to determine which interests should prevail. Applying this new form of substantive due process doctrine to the facts of Lawrence, the Supreme Court determined that the mere moral disapproval by the majority of the private practice of consensual homosexual sodomy would no longer suffice as a valid state justification for intruding upon an individual's rights to privacy and intimate association. In balancing the relevant state and individual interests in Lawrence, the Court decided that the articulated state interests were not substantial enough to outweigh the important interests the individuals had in exercising their individual autonomy. Because the Court found that the constitutional balance in this context favored the individuals, it upheld the legality of such individual practices, even though such behavior was morally repugnant to the majority of people in Texas. To consider what practical impact this Millian moment in Lawrence might have on state regulation of personal relationships in other forums, this article selects a highly controversial area of higher education law. In seeking to regulate consensual relationships between faculty and students, public universities are increasingly passing consensual relationship policies that prohibit some, or all, faculty-student relationships. Such heavy-handed state regulation collides head-on with individual faculty members' rights to privacy and intimate association. Elsewhere, and mostly from a policy point of a view, I have argued for a sliding scale approach to faculty-student consensual relationship policies. Under this approach, supervisory faculty-student relationships are presumptively prohibited, while non-supervisory relationships are presumptively permitted; the key being that neither presumption absolutely bans any such relationship. This approach is based on the premise that although respect for personal autonomy should not mean that society reflexively kow-tows to every quirky predilection a professor has in becoming romantically involved with his or her students; nevertheless, it should mean that an individual's rights to privacy and intimate association are taken seriously and weighed in a balance of relevant interests before the professor's rights are infringed upon by the state. I believe the legal orientation of the sliding scale approach is consistent with the Millian approach taken by the Lawrence Court, with its newfound respect for individual autonomy.