I think the application of Lawrence/Romer to disparate treatment of heterosexual statutory rape vs. homosexual statutory rape has to come to grips with Michael M. v. Superior Court (1981), which allowed for punishment of males but did not provide for punishment of females in the statutory rape context. Since Michael M. was a plurality opinion, one way to deal with it is to say it was not a majority holding. But if the outcome is taken as precedent, then there is a set of difficult doctrinal issues to deal with. The most significant is that Michael M. dealt with a gender-based classification, which is quasi-suspect and subject to intermediate scrutiny. The concurrence in Lawrence did not purport to treat classification based on sexual orientation as quasi-suspect like gender... more like mental retardation under Cleburne. The level of scrutiny issue (and its implementation) becomes very important doctrinally.
Relatedly, I think one fair reading of Lawrence is that it transports into substantive due process analysis the nuanced levels of scrutiny already applied in equal protection. Nominally, we have three levels of scrutiny in equal protection (strict for race and other suspect categories and for violations of fundamental interests; intermediate for gender and other quasi-suspect categories; and rational basis for the run of the mill cases). But we now (Grutter) see that strict in language means different things, depending upon the context. Intermediate scrutiny seems to mean different things in Michael M. and in the VMI case. And rational basis surely means something different in Cleburne and Romer than in Fritz (the former being rational basis with bite, to use the conventional dental metaphor).
This sliding scale of review is much denied by the Court (see Cleburne, Mass. Bd. of Retirement v. Murgia), but empirically it exists, despite the Court's protestations (advocated by the late Gerald Gunther 30 years ago). Standards for its application are lacking, but since these are stealth categories, the Court has never really addressed the stratification beyond the three acknowledged tiers (which the Court very reluctantly embraced openly in the gender area in Craig v. Boren).
Since the Court in Lawrence declined to define precisely what the contour of the liberty interest was (notably ignoring Glucksberg, despite the dissent's vociferous reference to that case) or to categorize it as fundamental, it did not use terms such as "compelling" or other strict scrutiny language, although clearly more than conventional rational basis was applied. This was possible because it could contend, more broadly, that govt can only legislate against secondary effects of conduct, not on the basis of governmentally-imposed morality in se. But if secondary effects can be identified, then the level of scrutiny issue becomes quite pivotal. And it is at least arguable that "discouragement of a gay lifestyle for juveniles" is a legitimate governmental interest that goes beyond morality in se. By analogy to abortion cases, the Court has allowed government to prefer childbirth to abortion in many ways, particularly related to funding, even as govt cannot criminalize abortions themselves in most circumstances.
For advocates of more judicial protection of "liberty" or "property" interests (or, as some have contended, privileges and immunities), the strategic question is how to get a particular interest into the undefined and unacknowledged inner circle of more heightened scrutiny. If Lawrence can be construed as starting down the equal protection path of increasingly stratified review (other than the fundamental/non-fundamental interest dichotomy pre-Lawrence), then this will be an interesting ride. For what it is worth, this seems to be the agenda of organizations such as Institute of Justice and Cato, both of which submitted amicus briefs in support of Petitioner in Lawrence....
Jim Blumstein
-----Original Message-----
From: Bryan Wildenthal [mailto:[EMAIL PROTECTED]]
Sent: Friday, July 11, 2003 8:32 PM
To: [EMAIL PROTECTED]
Subject: Re: A Lawrence puzzle
The Lawrence majority opinion expressly made approving noises (while not
technically relying on, so it is technically dicta) about the plaintiffs'
equal protection attack on the Texas law. Kennedy approvingly stated that
was a "plausible" ground to strike down the Texas law. While the Texas law,
unlike Kansas's, banned all gay "sodomy," the relevant point is that it
treated the same sexual act differently based solely on the sexes of the
participants. The Kansas law also does that, and imposes far harsher
penalties than did Texas on the disfavored same-sex sexual partner, to boot.
All Kennedy meant by saying that Lawrence did not involve minors was exactly
that: that Lawrence did not involve minors. That in no way precludes
applying Lawrence's logic, as precedent, to some other case (not the subject
of Kennedy's Lawrence opinion) that *does* involve minors.
Furthermore, the Kansas law is highly questionable under the pre-existing
Romer precedent. Since Lawrence has at least marginally (I would say
greatly) clarified Romer's status as precedent (greatly strengthening it by
removing the puzzling and unresolved tension with Bowers, which was premised
on Georgia's avowedly anti-gay enforcement of its facially neutral "sodomy"
law), it makes sense for the US Supreme Court to let the Kansas court sort
out, in the first instance, how Romer/Lawrence now apply.
I don't think Lawrence logically undermines statutory-rape laws in any
general or substantive sense, but the combination of Romer and Lawrence
surely undermine blatantly discriminatory statutory rape laws like Kansas's.
As I put it colloquially to a lawprof friend at dinner just last night,
Lawrence has converted Romer into Romer-on-steroids.
Quite obviously, the Kansas courts on remand should apply Romer and Lawrence
and strike down Limon's obscenely cruel and unjust sentence.
Bryan Wildenthal
Thomas Jefferson School of Law
-----Original Message-----
From: Andrew Koppelman [mailto:[EMAIL PROTECTED]]
Sent: Friday, July 11, 2003 11:52 AM
To: [EMAIL PROTECTED]
Subject: A Lawrence puzzle
Matthew Limon, a mentally retarded man, had just turned 18 when he had oral
sex with a boy who was a few weeks short of 15. Had the encounter been
heterosexual, the penalty for this statutory rape would have been fairly
mild. Kansas's "Romeo and Juliet law" greatly reduces the penalties for
young people under 19 who engage in consensual sexual activity with
teenagers between 14 and 16. Had that law applied, Limon would have
received, at most, a sentence of 15 months. However, because the "Romeo
and Juliet" law expressly excludes homosexual activity, Limon was sentenced
to 17 years in jail, five years of court supervision after his release, and
to be classified as a "sexual offender" for the rest of his life.
The U.S. Supreme Court vacated Limon's conviction and remanded the
case for reconsideration the day after it decided Lawrence v. Texas, in
which it invalidated Texas's sodomy law. The Court indicated that the
Limon case should be given "further consideration in light of Lawrence,"
2003 WL 21472762, but did not explain further.
The relevance of the Lawrence case is not immediately
obvious. The law struck down in Lawrence criminalized all homosexual
sex. The Court struck it down as an improper infringement on personal
liberty. The Court also emphasized, however, that "[t]he petitioners were
adults at the time of the alleged offense," and it later emphasized that
"[t]he present case does not involve minors." (The Court obviously did not
intend to call into question the constitutionality of statutory rape
laws.) The Court did not hold that there was anything per se wrong with
classifications on the basis of sexual orientation. (That would have
implied that the U.S. military's exclusion of gays was constitutionally
problematic.) Nor did the Court hold that discrimination against gay
people was an impermissible form of sex discrimination. (That would have
implied the legality of same-sex marriage.)
So here's the puzzle. Just what principle does Lawrence stand for
that was violated by the state in Limon? What ought the Kansas courts to
do on remand, and why?
________________________________________
Andrew Koppelman
Professor of Law and Political Science
George C. Dix Professor of Constitutional Law, 2002-03
Northwestern University School of Law
357 East Chicago Avenue
Chicago, IL 60611-3069
(312) 503-8431
mailto:[EMAIL PROTECTED]
________________________________________
