Anna K. Christensen,
Equality with Exceptions? Recovering Lawrence’s Central Holding,
102 Cal. L. Rev. 1337
Available at: http://scholarship.law.berkeley.edu/californialawreview/vol102/iss5/12
In the eleven years since the Supreme Court handed down its Lawrence v. Texas1 ruling, state courts have not consistently adhered to the decision’s implicit rejection of laws that regulate based on animus alone. Relying on the Court’s explicit limitation of its decision to cases that do not involve minors, “persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused,” public conduct, prostitution, government recognition of same-sex relationships, and practices not “common to a homosexual lifestyle”2—the so-called Lawrence exceptions—a number of states have continued to use archaic antisodomy laws to police conduct they see as morally reprehensible. This Comment examines the interpretation and application of the Lawrence exceptions by state courts, arguing that by maintaining discriminatory prosecution and punishment schemes for conduct deemed to fall within the exceptions, states run afoul of the core antidiscriminatory logic of Lawrence and of the Court’s earlier ruling in Romer v. Evans.3 My analysis addresses not only whether laws that fall within the Lawrence exceptions discriminate on the basis of sexual orientation, but also whether they enable or invite discrimination along gender- and race-based lines.