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Beyond Lawrence: Metaprivacy And Punishment, Jamal Greene
Beyond Lawrence: Metaprivacy And Punishment, Jamal Greene
Faculty Scholarship
Lawrence v. Texas remains, after three years of precedential life, an opinion in search of a principle. It is both libertarian – Randy Barnett has called it the constitutionalization of John Stuart Mill's On Liberty – and communitarian – William Eskridge has described it as the gay rights movement's Brown v. Board of Education. It is simultaneously broad, in its evocation of our deepest spiritual commitments, and narrow, in its self-conscious attempts to avoid condemning laws against same-sex marriage, prostitution, and bestiality. This Article reconciles these competing claims on Lawrence's jurisprudential legacy. In Part I, it defends the …
Common Sense About Original And Subsequent Understanding Of The Religion Clauses, Kent Greenawalt
Common Sense About Original And Subsequent Understanding Of The Religion Clauses, Kent Greenawalt
Faculty Scholarship
This Essay is mainly about the Establishment Clause, but it covers analogous questions about free exercise as well. I try to untangle the threads of various controversies, concentrating primarily on what seems fairly resolvable on examination, while also noting uncertainties that do not yield to easy analysis. I ask how constitutional language should have been and should be interpreted, adopting a strategy that gives weight to ordinary meaning and to the general sense of why that language was adopted. I do not eschew reference to legislative history; however for our purposes in this Essay, legislative history turns out to be …