What Did Lawrence Hold? Of Autonomy, Desuetude, Sexuality, and Marriage

The Supreme Court’s decision in Lawrence v. Texas is best seen as a cousin to Griswold v. Connecticut, invalidating a ban on the use of contraception within marriage, and Reed v. Reed, invalidating a preference for men over women in the administration of estates. In both cases, the Court struck down an anachronistic law palpably out of step with existing public convictions. Lawrence should be understood in the same terms, as rooted in a distinctly American-style doctrine of desuetude. The central principle is that at least if certain interests are involved, criminal statutes may not be invoked against citizens when the underlying moral judgments have become anachronistic, as demonstrated by a pattern of nonenforcement. A key problem here is procedural; it involves an absence of fair notice and arbitrary exercise of discretion. This understanding of the decision has implications for the many imaginable constitutional challenges to other laws involving sex and sexual orientation. After Lawrence, states are certainly prohibited from banning fornication; they are almost certainly forbidden to ban use of sexual devices. Bans on prostitution, incest, and adultery stand on firmer grounds, though even here responsible challenges can be imagined. After Lawrence, the Constitution almost certainly forbids public discrimination against those who have engaged in homosexual conduct, at least outside of certain specialized contexts (most notably the military). The hardest cases involve the failure to recognize same-sex marriages. The ban on same-sex marriages cannot be said to be an anachronism, even though it is not easy, in principle, to reject the law struck down in Lawrence while permitting states to deny gays and lesbians the right to marry. One general lesson, underlined by Lawrence, is that political and social change is usually a precondition for changed interpretation of the Constitution. * Karl N. Llewellyn Distinguished Service Professor, Law School and Department of Political Science, University of Chicago. I am grateful to Mary Anne Case, Carolyn Frantz, Richard A. Posner, Geoffrey Stone, and Adrian Vermeule for valuable comments; special thanks to Case, Frantz, and Vermeule for discussions. I am also grateful to Sarah A. Sulkowski for superb research assistance. In 1900, Mr. Dooley famously said that “[n]o matter whether th’ constitution follows th’ flag or not, th’ supreme court follows th ‘ilection returns.” The Court doesn’t really do that. But members of the Supreme Court live in society, and they are inevitably influenced by what society appears to think. My principal suggestion here is that the Court’s remarkable decision in Lawrence v. Texas is best seen as a successor to Griswold v. Connecticut: judicial invalidation of a law that had become hopelessly out of touch with existing social convictions. So understood, Lawrence, like Griswold, reflects an American variation on the old English idea of desuetude. Put too simply, the basic idea is that when constitutionally important interests are at stake, due process principles requiring fair notice, and banning arbitrary action, are violated when criminal prosecution is brought on the basis of moral judgments lacking public support, as exemplified by exceedingly rare enforcement activity. In Griswold, it will be recalled, the Court invalidated a Connecticut law forbidding married people to use contraceptives—a law that was ludicrously inconsistent with public convictions in Connecticut and throughout the nation. Griswold was decided in the midst of a substantial national rethinking of issues of sex and morality. Whatever the outcome of that rethinking, it was clear, by 1965, that reasonable people would no longer support bans on the use of contraceptives within marriage. In this respect, Griswold was quite similar to Reed v. Reed. There the Court struck down an Idaho statute giving a preference to men over women in the administration of estates of decedents who had died intestate—a law that was unquestionably a holdover from views about sex roles that were widely regarded as obsolete. Reed was decided in the midst of a substantial rethinking of gender roles; whatever the outcome of that rethinking, it was clear, by 1971, that a flat presumption in favor of men over women in employment would no longer be acceptable in principle. Lawrence belongs in the same family. In the area of Peter Dunne, The Supreme Court’s Decisions, in Mr. Dooley’s Opinions 26 (1900). 2 Robert Dahl made this argument nearly a half-century ago, before much of the work of the Warren Court. Notwithstanding the passage of decades, his argument stands up well. See Robert Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 Journal of Public Law 279 (1957). 3 123 S. Ct. 2472 (2003). 4 381 U.S. 479 (1965). 5 404 U.S. 71 (1971). 6 I specify this brief statement below. 7 381 U.S. 479 (1965). 8 404 U.S. 71 (1971). 9 The Court has shown special sensitivity to changing public convictions in the death penalty context. Furman v. Georgia, 408 US 238 (1972), invalidated certain capital sentences, in a complex set of opinions that seemed to presage the end of capital punishment in the United States. At least in retrospect, Furman is best seen as a kind of “remand” to state legislatures, asking for a new assessment of whether capital punishment was consistent with contemporary values. The result of the “remand” was a new affirmation of public support for capital punishment, to which the Court subsequently deferred, see Gregg v. Georgia, 428 US 153 (1976). In Coker v. Georgia, 433 U.S. 584 (1977), and Enmund v. Florida, 458 U.S. 782, 789-793 (1982), the Court relied heavily on contemporary practices in striking down death sentences for rape and for a defendant who did not take or intend to take life.More recently, the Court ruled that the Constitution forbids application to capital punishment to the mentally retarded, see Atkins v. Virginia, 536 US 304 (2002); in so ruling, the Court relied heavily on what it saw as changing social values. In a theme echoed in Lawrence, the Court wrote, A claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the ‘Bloody Assizes’ or when the Bill of Rights was