The Strange Doctrinal Legacy of Lawrence v. Texas

I’m currently working on a project concerning the doctrinal legacy of Lawrence v. Texas and continue to be amazed at the varied ways judges have read Justice Kennedy’s majority opinion. The Supreme Court’s opinions in the case have been cited over 700 times, but only rarely in an expansive manner. Justice Scalia’s parade of horribles, articulated in his dissent, has not been realized (particularly in regard to criminal laws). Laws criminalizing prostitution, public indecency, adultery, adult incest (even without blood relation), fornication, bigamy, bestiality, obscenity, and drug use have all survived Lawrence challenges.

However, in a few unanticipated areas Lawrence has had a notable effect. In one instance, Smithkline Beecham Corp. v. Abbot Laboratories (9th Cir. 2014), Judge Reinhardt on the Ninth Circuit cited Lawrence, along with other Supreme Court opinions regarding sexual orientation, in a Batson challenge case.  Reinhardt concluded that “heightened scrutiny applies to classifications based on sexual orientation and that Batson applies to strikes on that basis.” As a result, the court held that the decision to exclude a juror on the basis of sexual orientation violated Batson and ordered a new trial.

A stranger application, in my opinion, arose from a defamation lawsuit in Massachusetts. The First Circuit did not resolve the issue but described the district court holding in the case as follows:  “… the court held that imputing homosexuality cannot be considered defamatory per se…” Amrak Productions, Inc. v. Morton, 410 F.3d 69 (1st Cir. 2005); Albright v. Morton, 321 F. Supp. 2d 130 (D. Mass. 2004). The district court’s holding was particularly unusual because it did not need to reach the issue at all. The district court held, and the First Circuit agreed, that the plaintiffs had simply failed to state a defamation claim.

What strikes me as remarkable after reviewing all the cases that have cited Lawrence is that the majority opinion has primarily had effects in areas of law far outside of what was anticipated. Indeed, anti-sodomy laws, like the one at issue in Lawrence, are still enforced in several states (primarily in cases involving prostitution crimes and minors). So, does that mean that commentators were just really bad at predicting the effect of the new Lawrence doctrine? Or did Scalia’s dissent serve its function by encouraging courts to read Lawrence narrowly in the areas of law with which he was concerned?

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6 Responses

  1. JRH says:

    For what it’s worth, I believe Lawrence was also cited in a 2012 NY state appellate decision also rejecting imputation of homosexuality as grounds for defamation per se. See Yonaty v. Mincolla, available here

  2. Orin Kerr says:

    I’m not sure it works to measure the influence of Lawrence based on citations. It’s widely thought that the Supreme Court is going to decide more gay rights cases in the next few years. It’s also thought that the author of Lawrence will be the deciding vote in those future cases. Given that, it’s hard to know what citations are reflections of genuine influence and which citations are “Hi, Tony!” citations.

  3. Corey Yung says:

    Hi Orin,

    Citations are just part of the picture. Certainly they are incomplete regarding instances when prosecutors declined to prosecute or legislatures didn’t pass legislation because of Lawrence. However, Lawrence has been repeatedly read narrowly in a variety of criminal prosecutions. Courts have read 4 limiting terms (private, consensual, non-commercial, and adult) to even allow prosecutions for consensual sodomy. My project is primarily focused on the sexual-liberty angle chosen by Justice Kennedy and the majority (in contrast to the clearly gay-rights-oriented Equal Protection rationale of Justice O’Connor). I find it interesting that sexual liberty cases that weren’t considered related to gay rights have almost uniformly resulted in courts distinguishing Lawrence from the facts under consideration. BDSM contracts, incest between adult stepfathers and stepdaughters, adult teacher/student relations, and non-commercial obscenity production have all been litigated with the party arguing for sexual liberty losing. In several jurisdictions, police requests for oral sex in prostitution stings result in sodomy convictions and the prosecutions don’t even bother with the prostitution charges. But, as you state, cases might miss some of the effects of Lawrence in those areas as well.

  4. Joe says:

    The last point is curious. The case is about intimate association in the privacy of the home though it says mostly in passing that it involves somewhat more than that. Prostitution is not surprisingly not covered here though you can stretch it that way. Minors would not have the similar consent and are treated differently as well in the abortion context.

    OTOH, the case has been used to strike down fornication laws as applied to adults not involving payment. The case was as expected by many a turning point as applied to gays. The defamation case is interesting, but since it is now seen as a matter of equal protection for gays to be treated fairly here, the special treatment in the law there in the past does seem a bit out of date.

    The intimate association and gay equality nature of the ruling also makes it unsurprising that drug use was not something where the case received much traction. The one thing that does somewhat surprise me is obscenity. A judge some time back stretched Stanley v. Georgia to the downloading of porn and I think it is a sound approach. But, it was only a district court ruling that to my knowledge was not upheld. Saying bad words on prime time t.v. is still actionable though there might be a five person court to overturn Pacifica if the matter ever comes up.

  5. Corey Yung says:

    Hi Joe,

    In another post, I’m going to discuss some of the narrow readings of Lawrence that I think are mistaken. I agree that drug possession was never likely to be covered, but I wanted to mention all of the criminal laws that Scalia said would be struck down under the majority’s reading. The cases that I find more problematic involve continued use of the anti-sodomy statutes, BDSM prosecuted as assault, and adult incest between two persons without a blood relation. I think the last one is particularly difficult for those who want Lawrence read expansively. Incest is still regarded as the “ultimate taboo” and no one wants to be pro-incest. Nonetheless, in certain fact patterns, it seems as though Lawrence should protect incestuous sexual relations. I favor a very broad reading of Lawrence, but I also aim to be honest about what controversial activities that might protect.

  6. Dew_Process says:

    Don’t overlook the nearly 100 cases citing Lawrence in West’s “Military Justice Reporter” [database “MJ”], which contains all reported decisions by the U.S. Military’s Courts of Criminal Appeal and all of the decisions from the U.S. Court of Appeals for the Armed Forces. While admittedly, these are all criminal prosecutions brought against members of the U.S. military under the Uniform Code of Military Justice, 10 U.S.C. 801 et seq., Lawrence as a matter of constitutional law is applicable.