Friday, July 11

Lawrence Redux - For the would-be legal scholars out there, this NRO column by Cato Institute fellow Randy Barnett merits reading. He examines a question that has been nagging me since the Lawrence decision first came out: Where was the Court's traditional analysis for overturning state law on constitutional grounds? In law school, we all learned how the courts almost always balance an individual's "fundamental rights" against a state interest that must be "compelling." (If the behavior in question is not a "fundamental" right, then the state's restriction need only be "rational.")

Justice Kennedy's Lawrence opinion couldn't really be read to follow this usual path so precisely. (Bowers, in contrast, turned very much on the conclusion that the asserted right to engage in sodomy was far from "fundamental.") Barnett's explanation for this absence is that Kennedy is engineering a libertarian revolution in the Court's jurisprudence -- one that Barnett naturally applauds.

In short, Barnett explains that the traditional balancing act always gave great deference to the government's case. A court would only restrict government power where an individual could show that his or her fundamental rights were at stake. While that case was relatively easy to prove when it came to the enumerated rights (such as those covered by the First Amendment), decisions resting upon unwritten rights, like the right to privacy, made for difficult cases and unpopular opinions.

Barnett asserts that Kennedy is striking out in a new direction. While acknowledging the Court's precedents outlining a right to privacy, the Justice emphasizes another concept -- liberty -- and announces an entirely different test of constitutionality. Barnett argues that within the boundaries of Kennedy's "liberty test," which the author equates to the Harm Principle, government faces a much more difficult burden. Rather than have the individual prove his or her right is fundamental, it is the government that must prove that a restriction on liberty is justified. Furthermore, the bare argument that the activity is considered immoral won't cut it. (We don't know yet what standard would be sufficient on that question, because Texas couldn't come up with anything better in this case, and the Court didn't have to make a difficult call.)

Under this simple new test, sodomy laws didn't stand a chance. Many other governmental prohibitions on individual liberty (e.g. against pornography or marijuana) might also fail. On the other hand, it is much more difficult to apply this test to more complicated issues that require active government involvment -- like sanctioning gay marriage. After all, Kennedy sided with the Boy Scouts when the courts tried to require them to include gays against their liberty interest of free association. We'll all have to stay tuned to see how these novel legal questions evolve.