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?