Does the opinion also undermine/cabin the doctrinally weird argument in Graham v. Connor/Sacramento County (picked up by Scalia in his concurring opinion in City of Cuyahoga Falls (2003)) that substantive due process analysis is precluded when a "more specific" constitutional provision --including the equal protection clause -- applies?
The majority in Lawrence points out, correctly, that the two rights "are linked in important respects, and that a decision on [the due process right to demand respect for conduct protected by the substantive guarantee of liberty]advances both interests." I was surprised that Scalia omitted any reference to Graham/Sacramento here. -----Original Message----- From: Mark Tushnet [mailto:[EMAIL PROTECTED] Sent: Thursday, June 26, 2003 11:29 AM To: [EMAIL PROTECTED] Subject: Re: Bowers Overruled Maybe the strategy of insisting that Lawrence is (really) a "sort of fundamental rights" case is mistaken. (Certainly libertarians will think it is.) Maybe it's a good idea to say that the government has to have pretty good/really good/compelling reasons to restrict any liberty at all (subject to the qualification that a different test should be applied when the Constitution specifically identifies a particular liberty -- e.g., property, free speech). Maybe a general theory of substantive due process, suitably confined, with respect to (mere) liberties isn't such a bad idea.
