Of Same Sex Relationships and Affirmative Action: The Covert Libertarianism of the United States Supreme Court

Abstract

The now discredited doctrine in Lochner v. New York, applied a theory of constitutional review that struck down limitations on freedom of contract in economic affairs that did not protect the process of contract formation, and did not control against harmful external effects on third parties, whether by force or monopoly. Mere dislike of the practices of other parties was not a ground for regulation. Yet on matters of morals, most specifically the regulation of sexual practices, the old court applied a much laxer standard. The recent decisions in Grutter and Lawrence represent the complete reversal of the pattern, so that now on matters of sexual regulation and morals, a high standard of review is applied to state efforts to stop consensual arrangements, while a low standard of review is in practice applied when the state wishes to engage in affirmative action. The difficulties with these modern opinions lie not in their results, but in their lack of candor in the choice of standards of review. The observed pattern applies the Lochner standards to "intimate associations" but offers no reason why it should not be applied to all associations, regardless of their purpose.