This brief article explains why Lawrence v. Texas could be a revolutionary case if the Supreme Court follows Justice Kennedy's reasoning in the future. As in Planned Parenthood v. Casey, Justice Kennedy finds a statute to be unconstitutional, not because it infringes a right to privacy (which is mentioned but once), but because it infringes "liberty" (a word he uses at least twenty-five times). In addition, Justice Kennedy's opinion protects liberty without any finding that the liberty being restricted is a "fundamental right." Instead, having identified the conduct prohibited as liberty, he turns to the purported justification for the statute and finds it inadequate. This represents a marked rejection of the fundamental rights jurisprudence as it has developed since Griswold v. Connecticut, and the adoption—sub silentio—of a "presumption of liberty."
2002-2003 Cato Sup. Ct. Rev. 21-41
Scholarly Commons Citation
Barnett, Randy E., "Justice Kennedy's Libertarian Revolution: Lawrence v. Texas" (2003). Georgetown Law Faculty Publications and Other Works. 838.