Lawrence v. Texas and the Limits of the Criminal Law

Abstract

This article looks to the Supreme Court's proportionality jurisprudence under the Eighth Amendment to substantiate four claims. The first claim is that the Lawrence Court was correct to hold that the enforcement of popular morality as such does not constitute a legitimate state interest in the context of criminal punishment. The second claim is that even if Lawrence is read to apply only rational basis scrutiny to laws regulating sexual intimacy, the Court has provided techniques by which to dismiss minimal and speculative harms as rationalizations for criminalization and punishment. The third claim of the article is that the Eighth Amendment provides an independent source of substantive limitations on the scope of the criminal law, alongside and in support of liberty and privacy concerns. The fourth claim is that important constitutional values, including the viability of proportionality review itself, would be compromised by endorsement of the enforcement of popular morality as an acceptable goal of punishment independent of retributive and consequentialist principles. To support these claims the article offers an original interpretation and application of the Court's Eighth Amendment cases, engages with objections to that line of cases by Justice Antonin Scalia, and refutes new and seemingly compelling arguments in favor of legal moralism emerging from the expressive theory of criminal law.