Body Politics: Lawrence v. Texas and the Constitution of Disgust and Contagion

Abstract

The Supreme Court ruled in Lawrence v. Texas that states could not constitutionally criminalize private oral or anal sex between consenting adults. How far does the decision sweep? Is it limited to its facts, with no broader implications for constitutional law, as the Eleventh Circuit recently held? Or does Lawrence entail a massive shift, not only protecting any and all private sexual activities, but also writing the entire "homosexual agenda" into the Constitution, as Justice Scalia charged in dissent? Both of these extreme reactions can be logically and responsibly argued from the majority and concurring opinions delivered by Justices Kennedy and O'Connor, respectively. But few constitutional scholars think the narrowest or the broadest reading of Lawrence is correct. Its charged reasoning cannot be limited to the sodomy context alone, but neither does it entail same-sex marriage.