On Tue, 29 Jul 2003, Gary Allison wrote: > I also have a question about the so-called rational basis analysis used in > J. Kennedy's opinion in Lawrence. It is premised on J. Kennedy's belief > that sodomy laws do not further any legitimate government interest because > they do not advance any government interest in promoting the health and > safety of the people as opposed to the moral sentiments of the majority. > [snip]
As I read it, Kennedy's majority opinion for the Court does not purport to apply rational basis review, strict scrutiny, or any other established doctrinal test to Texas's "homosexual conduct" law. It announces no test. Rather, after an elaborate discussion of how Bowers v. Hardwick was wrong (let me count the ways...), the opinion turns to the sole rationale pressed by Texas in defending its law: a bald assertion of immorality. What Kennedy wrote there is, IMHO, studiedly ambiguous: "Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. . . . The Texas statute furthers no legitimate state interest *which can justify* its intrusion into the personal and private life of the individual." (emphasis added) This does not tell us whether any old legitimate state interest to which the law was rationally related would suffice to uphold the statute, or whether only a subset of legitimate interests (such as compelling ones to which the law was narrowly tailored) would suffice "to justify" the "intrusion" on Mr. Lawrence's and Mr. Garner's "right to liberty." Justice Scalia in dissent is correct that the Court never flatly states that Texas infringed upon a "fundamental right" of Lawrence and Garner. But I believe he was wrong to say that the Court announced that the governing test is rational basis review. I think one must construe ambiguity in the Court's opinion to resolve this issue, if even that can do it. > My understanding of the rational basis test is that any purpose that > could be rationally viewed as related to protecting someone from a > potential health or safety problem is a legitimate government purpose, > and any law that could rationally be viewed as providing some health > or safety benefit meets the rational basis SDP analysis test. It is > also my understanding that the mechanics of sexual activity defined as > sodomy subject persons who regularly engage in sodomy to potential > health risks. I failed to find any discussion of this in any of the > opinions in Lawrence, but maybe I missed it somehow. You are right that the Court didn't discuss this. Texas did not urge that the Court uphold the statute on this ground (although I believe that an amicus brief made the argument and another sought to rebut it). So we know at least that the Court did not apply strong, Heller v. Doe/FCC v. Beach rational basis review, which would have required it to entertain hypothetical governmental interests and insisted on Lawrence and Garner's having rebutted "any conceivable" interest. David B. Cruz Professor of Law University of Southern California Law School Los Angeles, CA 90089-0071 U.S.A.
