Defining One's Own Concept of Existence and the Meaning of the Universe: The Presumption of Liberty in Lawrence v. Texas

The only freedom which deserves the name is that of pursuing our own good, in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily, or mental and spiritual. Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest. . . .1 Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.2 I. INTRODUCTION The U.S. Supreme Court's decision in Lawrence v. Texas,3 the landmark 2003 ruling overturning a Texas statute criminalizing homosexual sodomy, strikes at the very heart of a debate that has been raging in academic and political circles ever since the Court's revival of substantive due process in Griswold v. Connecticut.4 The crux of the debate focuses on a question primal to political theory: if an expansive understanding is to be given to the right of the individual "to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life,"5 what legitimate role is left for the state to declare moral limitations upon the definitions individuals choose? This note argues that Lawrence stands for a presumption of liberty protecting the private acts of individuals under the Due Process Clause. Simply put, this means that if the government fails to show that its restrictions on individual exercises of liberty are not necessary and proper regulations of behavior harmful to others, the mere claim that the government is upholding morality grounded in "history" or "traditions" should not justify such restrictions on liberty. This reading of Lawrence recognizes the Court's decision both as a victory for a more sound adjudication of substantive due process claims and as an accurate understanding of the libertarian underpinnings of American constitutionalism. Far from the fears of the dissent, Lawrence does not signal the end of morality in the law, but rather it recasts morality in terms that are palatable both to contemporary intuitions of what liberty means and to a classical understanding of the role of the individual in liberal democracy. In the final analysis, Lawrence is best seen as a substantial victory for the right of all Americans to define their own concepts of meaning and value in matters fundamental to how individuals constitute their very existence. Part II of this note gives an overview of the Court's substantive due process jurisprudence in order to give context to Lawrence's potential reach beyond sexual autonomy cases. Part III analyzes the Court's opinion in Lawrence, focusing on Justice Anthony Kennedy's majority opinion and Justice Antonin Scalia's dissenting opinion. Part IV offers a particular interpretation of the majority opinion, arguing that Lawrence is nothing less than a watershed moment both for a renewed soundness in constitutional jurisprudence, and for the revival of libertarian values that have far too long been ignored by the Court. This part argues that Lawrence can and should be read as ushering in a presumption of liberty in subsequent cases brought before the Court. This part also offers a rejoinder to the principal arguments of Justice Scalia's dissent, relying on the writings of Joel Feinberg to argue that Scalia's most sweeping claims are misplaced or incorrect because they fail to grasp the proper limits of legal moralism. Part V offers a short conclusion. …