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Sexual Orientation And The Paradox Of Heightened Scrutiny, Nan D. Hunter
Sexual Orientation And The Paradox Of Heightened Scrutiny, Nan D. Hunter
Georgetown Law Faculty Publications and Other Works
In Lawrence v. Texas, the Supreme Court performed a double move, creating a dramatic discursive moment: it both decriminalized consensual homosexual relations between adults, and, simultaneously, authorized a new regime of heightened regulation of homosexuality. How that happened and what we can expect next are the subjects of this essay.
Living With Lawrence, Nan D. Hunter
Living With Lawrence, Nan D. Hunter
Georgetown Law Faculty Publications and Other Works
This Article will proceed in three steps. First, I will examine the Court's treatment of liberty. I see Lawrence as marking the emergence of a new approach to substantive due process analysis, one that has been simmering in the concurring opinions of Justices Souter, Stevens, and Kennedy for the last decade. These three Justices apparently now have a majority for extending meaningful constitutional protection to liberty interests without denominating them as fundamental rights. They also appear to be jettisoning, at least prospectively, a special category for privacy rights. Second, I will turn my attention to the ramifications of Lawrence's equality …