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16 Stan. L. & Pol'y Rev. 23 (2005)
Lawrence v. Texas & (and) the Refinement of Substantive Due Process

handle is hein.journals/stanlp16 and id is 27 raw text is: LAWRENCE V. TEXAS & THE REFINEMENT
OF SUBSTANTIVE DUE PROCESS
Matthew Colest
INTRODUCTION    ...................................................................................... . 23
I. THE DUE PROCESS ANALYSIS USED IN LAWRENCE V. TEXAS ................ 25
A. The Scheme of Substantive Due Process Analysis .................. 25
B. The Lawrence Holding & its Terminology: Rational Basis,
Strict Scrutiny, or Protected Liberty? ................................ 27
C. The Court's Explanation in Lawrence: Rational Basis, Strict
Scrutiny, or Protected  Liberty? ......................................... 31
II. REFINING SUBSTANTIVE DUE PROCESS .............................................. 37
A. Toward a More Sophisticated Substantive Due Process
A nalysis .............................................................................   37
B. Reestablishing the Proper Role of History in Identifying
Protected  Liberty  ..............................................................   42
III. CODA: THE RIGHT TO AUTONOMY & MARRIAGE ............................. 49
INTRODUCTION
Lawrence v. Texas! was a major victory for the ongoing effort to end
discrimination based on sexual orientation. Lawrence prohibited sodomy laws,
which, whether they applied just to gay people like Texas's law or on their face
applied to everyone, have long been used as a tool for discrimination against
gay people.2 Lawrence also overturned Bowers v. Hardwick,3 which had been a
t Matthew Coles (B.A. Yale University; J.D. University of California, Hastings
College of the Law) has been the Director of the Lesbian and Gay Rights Project at the
American Civil Liberties Union since 1995. Thanks to Nan Hunter, James Esseks, Leslie
Cooper, Mark Sexton, Steve Shapiro, Ken Choe, Tamara Lange, and Robert Nakatani.
1. 539 U.S. 558, 567, 574-75 (2003).
2. See, e.g., Shahar v. Bowers, 114 F.3d 1097, 1104-45 (11th Cir. 1997) (involving a
lesbian who had a wedding ceremony with her partner that was subsequently fired from her
job as deputy attorney general because of the possible public perception that she violated the
state's sodomy law); Weigand v. Houghton, 730 So. 2d 581, 591 (Miss. 1999) (denying a
gay father custody because of his presumptive violation of the state's gender neutral sodomy
law); Bottoms v. Bottoms, 457 S.E.2d 102, 108 (Va. 1995) (dealing with the same situation,

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