Con Law: A fundamnetal right to have gay sex? Forum

[joetheplumber]

I am trying to understand Lawrence v. Texas.
Does the Court hold that we have a fundamental right to have homosexual conduct? Or a right to have sex in general? What is the fundamental right that is being implicated. Also what level of review does the court uses (Is it Rational basis, intermediate scrutiny, or Strict Scrutiny)?

Thanks guys.

[kpuc]

Paraphrasing my outline:

The right to privacy that protects sexual conduct and decisions in intimate relationships (see Griswold and contraceptives) extends to homosexual acts. Lawrence overrules Bowers, but J. Kennedy's majority opinion doesn't indicate a scrutiny level.

Somebody please correct me if I'm wrong.

[Bronck]

The court neither cites a level of scrutiny nor mentions a fundamental right, but it does say that TX can't legislate on mere morals, which is usually sufficient for rational basis review.

[Richie Tenenbaum]

Paraphrasing my outline:

The right to privacy that protects sexual conduct and decisions in intimate relationships (see Griswold and contraceptives) extends to homosexual acts. Lawrence overrules Bowers, but J. Stevens' majority opinion doesn't indicate a scrutiny level.

Somebody please correct me if I'm wrong.

Well the majority opinion is by Kennedy, so you might want to fix that.

OP: It's been awhile since Con Law, but this is how I remembered Lawrence:
1) O'Connor wanted to go EPC, and view homosexuals as a protected class (and I think she even was fine with rational basis review for this class (so she could counter Scalia's complaint that this would make any laws against gay marriage unconstitutional), but I really don't remember).
2) Kennedy instead went substantive due process and extended griswold to find a fundamental right to privacy for sexual activities between two people.

I don't remember if Kennedy was clear on level of scrutiny, but aren't fundamental rights protected by due process usually protected by strict scrutiny?

[kpuc]

Paraphrasing my outline:

The right to privacy that protects sexual conduct and decisions in intimate relationships (see Griswold and contraceptives) extends to homosexual acts. Lawrence overrules Bowers, but J. Stevens' majority opinion doesn't indicate a scrutiny level.

Somebody please correct me if I'm wrong.

Well the majority opinion is by Kennedy, so you might want to fix that.

OP: It's been awhile since Con Law, but this is how I remembered Lawrence:
1) O'Connor wanted to go EPC, and view homosexuals as a protected class (and I even she was fine with rational basis review for this class, but I really don't remember).
2) Kennedy instead went substantive due process and extended griswold to find a fundamental right to privacy for sexual activities between two people.

I don't remember if Kennedy was clear on level of scrutiny, but aren't fundamental rights protected by due process usually protected by strict scrutiny?

Haha, I meant Kennedy and did have that in my outline. For some reason, I wrote Stevens in the reply.

[laxbrah420]

What my professor loved about this case is that you can frame these fundamental rights questions however you want...that's what you should really take from this case for using on an exam, I think. If you pose the question as, "Is there a fundamental right to do [whatever]", the answer is likely going to be no, but if you make it a broader category, like the right to privacy, the right to have relationships, the right to be free of government interference within your own home, then it seems like the answer should be yes.

So on an exam, just swing both ways brah.
The other good quote from this case, I think, was the quote about it being bullshit to criminalize the act that defines the class --trying to say that the issue is not the class itself but rather something the class does is not an intellectually honest way to approach the problem- gays are gay because they have gay sex. That might have been the EP concurrence though?

TL;DR --you're not going to get a question on your exam with these exact facts, or need to answer, "True/False: Having gay buttsex is protected by the 5th/14thA". Use the case for the techniques it uses (SDP vs EP, and framing)

#laxbrahhelpful2013

[Bronck]

^ Yep sounds about right.

The narrow Scalian approach v. the broader "salient tradition" Harlan approach.

As far as I can tell, DPC is basically at the whim of the justices anyway.

[5ky]

There was no standard of review and it was never found that any fundamental right was necessarily implicated. Mostly, Kennedy just talked about the importance of the act and how Bowers was wrong.

It led to problems in the most recent cases about same sex marriage, because the briefs were all over the place re: rational basis vs. SS and DPC vs. EPC, because Lawrence really didn't give any guidance to those

[joetheplumber]

Thanks guys. Now if you can help me on the affirmative action hypo I just posted.

[thesealocust]

What my professor loved about this case is that you can frame these fundamental rights questions however you want...that's what you should really take from this case for using on an exam, I think. If you pose the question as, "Is there a fundamental right to do [whatever]", the answer is likely going to be no, but if you make it a broader category, like the right to privacy, the right to have relationships, the right to be free of government interference within your own home, then it seems like the answer should be yes.

So on an exam, just swing both ways brah.
The other good quote from this case, I think, was the quote about it being bullshit to criminalize the act that defines the class --trying to say that the issue is not the class itself but rather something the class does is not an intellectually honest way to approach the problem- gays are gay because they have gay sex. That might have been the EP concurrence though?

TL;DR --you're not going to get a question on your exam with these exact facts, or need to answer, "True/False: Having gay buttsex is protected by the 5th/14thA". Use the case for the techniques it uses (SDP vs EP, and framing)

#laxbrahhelpful2013

That was an outstanding response.

[aladdinismyprince]

my professor's articulation of the "holding" [if you can even call it that] of Lawrence: Kennedy wheels out the Due Process machinery about right of privacy only to ultimately conclude that animus is never a legitimate reason for legislation, even under the rational basis test.

[ndirish2010]

You guys do SDP/EPC in Con Law I?

[rad lulz]

What my professor loved about this case is that you can frame these fundamental rights questions however you want...that's what you should really take from this case for using on an exam, I think. If you pose the question as, "Is there a fundamental right to do [whatever]", the answer is likely going to be no, but if you make it a broader category, like the right to privacy, the right to have relationships, the right to be free of government interference within your own home, then it seems like the answer should be yes.

So on an exam, just swing both ways brah.
The other good quote from this case, I think, was the quote about it being bullshit to criminalize the act that defines the class --trying to say that the issue is not the class itself but rather something the class does is not an intellectually honest way to approach the problem- gays are gay because they have gay sex. That might have been the EP concurrence though?

TL;DR --you're not going to get a question on your exam with these exact facts, or need to answer, "True/False: Having gay buttsex is protected by the 5th/14thA". Use the case for the techniques it uses (SDP vs EP, and framing)

#laxbrahhelpful2013

That was an outstanding response.

Holy crap I'm impressed

[bananapeanutbutter]

No, they do recognize a fundamental right. It's slid into the right to privacy, and she makes clear it doesn't extend to sex in public or with a minor. If she didn't think it was a fundamental right, she wouldn't compare it to the right to privacy. Butt sex is a fundamental human right. Tell your women.

[A. Nony Mouse]

You guys do SDP/EPC in Con Law I?

My school only required one Con Law class. 1/3 was SDP/EPC (however, we didn't do First Amendment at all b/c we had a separate First Amendment class).

[nyg22]

No, they do recognize a fundamental right. It's slid into the right to privacy, and she makes clear it doesn't extend to sex in public or with a minor. If she didn't think it was a fundamental right, she wouldn't compare it to the right to privacy. Butt sex is a fundamental human right. Tell your women.

I think this is wrong. If Kennedy recognized the right of intimacy/association/sexual conduct or w/e as fundamental, the court would have applied strict scrutiny. Rather, it struck down the law under rational basis w/ bite due to animus.

[bananapeanutbutter]

No, they do recognize a fundamental right. It's slid into the right to privacy, and she makes clear it doesn't extend to sex in public or with a minor. If she didn't think it was a fundamental right, she wouldn't compare it to the right to privacy. Butt sex is a fundamental human right. Tell your women.

I think this is wrong. If Kennedy recognized the right of intimacy/association/sexual conduct or w/e as fundamental, the court would have applied strict scrutiny. Rather, it struck down the law under rational basis w/ bite due to animus.

she never directly embraced it, but did compare it to the right to privacy and recognized it under there. it is protected as a fundamental right, just not explicitly. the court doesn't want to apply strict scrutiny to heightened sexuality, because they're still not sold on what they want to do with gay marriage, but it is at the very least a quasi-right. she seems to have said sexual activity in a bedroom in privacy b/w consenting adults is a fundamental right because of the right to privacy, not homosexuality per se. i think they used rational basis, because it could have been shut down on rational basis grounds too because of romer.

[5ky]

First off, Kennedy wrote the opinion, not O'Connor. And he didn't use rational basis either, he didn't apply any level of scrutiny

[nyg22]

No - I think you're wrong.

First, if the court recognized the right to engage in sexual conduct as fundamental, it would need to apply strict scrutiny. End of story. The "gaming" of constitutional law is phrasing the right as narrowly or broadly as possible to persuade the court to apply strict scrutiny. However, the court cannot acknowledge a right as fundamental or a classification as race-conscious, and decide to apply rational basis.

Second, Kennedy did equate the right of intimacy, etc. as a right of privacy, but it does not necessarily follow that a right to privacy is fundamental. See Meyer, where the court struck down a law prohibiting non-english education under "liberty", while using rational basis. Of course, he is very careful to NOT call the right as fundamental with the marriage cases in mind.

No, they do recognize a fundamental right. It's slid into the right to privacy, and she makes clear it doesn't extend to sex in public or with a minor. If she didn't think it was a fundamental right, she wouldn't compare it to the right to privacy. Butt sex is a fundamental human right. Tell your women.

I think this is wrong. If Kennedy recognized the right of intimacy/association/sexual conduct or w/e as fundamental, the court would have applied strict scrutiny. Rather, it struck down the law under rational basis w/ bite due to animus.

she never directly embraced it, but did compare it to the right to privacy and recognized it under there. it is protected as a fundamental right, just not explicitly. the court doesn't want to apply strict scrutiny to heightened sexuality, because they're still not sold on what they want to do with gay marriage, but it is at the very least a quasi-right. she seems to have said sexual activity in a bedroom in privacy b/w consenting adults is a fundamental right because of the right to privacy, not homosexuality per se. i think they used rational basis, because it could have been shut down on rational basis grounds too because of romer.

[nyg22]

First off, Kennedy wrote the opinion, not O'Connor. And he didn't use rational basis either, he didn't apply any level of scrutiny

You could say he didn't apply any level of scrutiny, but surely that would be misleading. In any SDP or EPC case, the courts are going to apply a level of scrutiny, but they may be dodgy about stating the standard of review if they are straying from the usual doctrine. For example, Kennedy didn't apply strict scrutiny as there was no discussion of compelling state interest or narrowly tailored means. Yet, he clearly was less deferential to legislature than a usual rational basis case. Since he argues the illegitimacy of states using animus to pass laws against a historically disadvantaged group, it is a rational basis with bite case (a la Romer, Cleburne, Plyler, etc.)

[bananapeanutbutter]

No - I think you're wrong.

First, if the court recognized the right to engage in sexual conduct as fundamental, it would need to apply strict scrutiny. End of story. The "gaming" of constitutional law is phrasing the right as narrowly or broadly as possible to persuade the court to apply strict scrutiny. However, the court cannot acknowledge a right as fundamental or a classification as race-conscious, and decide to apply rational basis.

Second, Kennedy did equate the right of intimacy, etc. as a right of privacy, but it does not necessarily follow that a right to privacy is fundamental. See Meyer, where the court struck down a law prohibiting non-english education under "liberty", while using rational basis. Of course, he is very careful to NOT call the right as fundamental with the marriage cases in mind.

No, they do recognize a fundamental right. It's slid into the right to privacy, and she makes clear it doesn't extend to sex in public or with a minor. If she didn't think it was a fundamental right, she wouldn't compare it to the right to privacy. Butt sex is a fundamental human right. Tell your women.

I think this is wrong. If Kennedy recognized the right of intimacy/association/sexual conduct or w/e as fundamental, the court would have applied strict scrutiny. Rather, it struck down the law under rational basis w/ bite due to animus.

she never directly embraced it, but did compare it to the right to privacy and recognized it under there. it is protected as a fundamental right, just not explicitly. the court doesn't want to apply strict scrutiny to heightened sexuality, because they're still not sold on what they want to do with gay marriage, but it is at the very least a quasi-right. she seems to have said sexual activity in a bedroom in privacy b/w consenting adults is a fundamental right because of the right to privacy, not homosexuality per se. i think they used rational basis, because it could have been shut down on rational basis grounds too because of romer.

But the right to privacy was used in Griswold, and all the other contraceptive cases + Roe.

I don't think they'd need to apply strict scrutiny, because if it could be struck down under equal protection and due process, the court will pick equal protection because that way they don't need to have their legitimacy questioned as they always do when they make up new rights.

I think it's professor dependent. My professor did say there is a fundamental right to butt sex, in more charming words. However, the crunchtime book I used said there was no fundamental right. I think it can be read both ways. The right to privacy, though, is definitely a fundamental right. That's not really disputed.

[nyg22]

Lol - I guess agree to disagree. I would just note that saying the right to privacy is a fundamental right is begging the question. The ENTIRE debate (if you accept substantive due process as legitimate) is which rights are fundamental or not.

[bananapeanutbutter]

Lol - I guess agree to disagree. I would just note that saying the right to privacy is a fundamental right is begging the question. The ENTIRE debate (if you accept substantive due process as legitimate) is which rights are fundamental or not.

I personally think the Supreme Court is not legitimate in granting any unenumerated rights, and that it's a gross injustice (though I agree with every ruling politically). It's not their fucking job to pass laws. However, it's kind of unquestionable that the right to privacy is a broad group of fundamental rights. What is debatable is whether butt sex goes in there. But if the Supreme Court is going to give us no say in the child rearing process, I think we at least deserve to not get arrested for having consensual butt sex. However, it's not directly slotted into the Right To Privacy, which is only talked about as being similar to the butt sex.