Beyond Lawrence: Metaprivacy and Punishment

Abstract

Lawrence v. Texas remains, after three years of precedential life, an opinion in search of a principle. It is both libertarian–Randy Barnett has called it the constitutionalization of John Stuart Mill’s On Liberty–and communitarian–William Eskridge has described it as the gay rights movement’s Brown v. Board of Education. It is simultaneously broad, in its evocation of our deepest spiritual commitments, and narrow, in its self-conscious attempts to avoid condemning laws against same-sex marriage, prostitution, and bestiality. This Article reconciles these competing claims on Lawrence’s jurisprudential legacy. In Part I, it defends the view that Lawrence constitutionalizes what I call “metaprivacy”: When societal consensus internalizes a breach of the historical legal divide between particular “conduct” and an associated “status,” punishment of that conduct cannot be based on moral approbation alone. The Article then, in Part II, harmonizes this view of Lawrence’s legacy with pre-Lawrence constitutional privacy doctrine and theory. Finally, in Part III, the Article applies this understanding of Lawrence interdoctrinally, to capital sentencing. The Article suggests that all that separates the impermissible moral judgments made by a legislature in prohibiting sodomy from the permissible—indeed, almost constitutionally required–moral judgments made during the sentencing phase of a capital trial is a preference for gays over other a priori criminals. Notwithstanding the obvious appeal of permitting such a preference, Lawrence provides no support for it. author. Law Clerk, Hon. Guido Calabresi, U.S. Court of Appeals for the Second Circuit; J.D., Yale Law School, 2005; A.B., Harvard College, 1999. I wish to thank Ursula Bentele, Manuel Berrelez, Guido Calabresi, John Coyle, William Eskridge, Zachary Katz, Jon Michaels, Elora Mukherjee, Jennifer Peresie, Laurence Schwartztol, and especially Daniel Markovits for their generous feedback and support. I owe a special debt to Brenda Greene, Perry Greene, and Talib Greene for their still more generous example. GREENE 6/20/2006 12:46:52 PM