Lawrence v. Texas

Questions for Further Study

• 1. Which justice presents the best-reasoned analysis in the opinions from Lawrence v. Texas? Does Kennedy adequately answer the critiques of his logic put forth by Scalia?
• 2. Among the most important holdings in Lawrence is that moral judgments can no longer serve as a legitimate basis for legislation; other public-interest motivations must be advanced if morality-based legislation is to sustain constitutional attack. What laws might this holding affect? Is there more than a moral basis for outlawing polygamy? Same-sex marriage? Sodomy in the military? Incest? Prostitution? Bestiality? Adoption by gay parents? Obscenity? Recreational drug use?
• 3. Compare the analysis employed by Justice Kennedy in the majority opinion with that employed by Justice William Rehnquist in Washington v. Glucksberg (1997), which rejected the claim that the right to privacy included the right to direct the course of one's own death through physician-assisted suicide. In Glucksberg the Court reasoned that access to physician-assisted suicide is not a right deeply rooted in our nation's history and traditions and thus is not protected by the due process clause. Does that analysis withstand scrutiny after Lawrence?
• 4. Does Justice Kennedy's discussion of European and international law have relevance to the proper analysis of the scope of the U.S. due process clause?