Lawrence v. Texas and Judicial Hubris

Authors

Nelson Lund, George Mason University School of Law
John O. McGinnis, Northwestern University School of Law

Abstract

The republic will no doubt survive the Supreme Court's decision, in Lawrence v. Texas, to invalidate laws against private, consensual sodomy, including those limited to homosexual behavior. Such laws are almost never enforced, and the rare prosecutions for such acts are necessarily capricious. So the principal direct effect of the Court's decision is likely to be extremely limited, and largely salutary: a few individuals will be spared the bad luck of getting a criminal conviction for violating laws that are manifestly out of step with prevailing sexual mores. Nor are we likely to see anything like the intense political opposition generated by this decision's most important doctrinal ancestor, Roe v. Wade. Millions of Americans regard Roe as judicial authorization for mass murder, and understandably continue to oppose the Court's approach to abortion. One can hardly foresee a similar passion for overturning a judicial decision that merely eliminates a few haphazard prosecutions for private conduct that has no immediate effect on any third parties. Judging at least by what we see in the general press and popular entertainment media, most of the public can be counted on to respond to the immediate consequences of Lawrence with a yawn. If the Court was looking for a case in which to flex its political muscles with impunity, it could hardly have found a better candidate.

Recommended Citation

Nelson Lund & John O. McGinnis, Lawrence v. Texas and Judicial Hubris, 102 Mich. L. Rev. 1555 (2004).
Available at: https://repository.law.umich.edu/mlr/vol102/iss7/4