Some more questions . . .
QUESTION: In Griswold and Baird, the Court apparently finds the right to privacy to be a fundamental right. Yet, the analysis the Court uses is a legitimate interest/reasonable fit test. Again, is this because the Court is saying, "Hello state, you can't even meet the "reasonableness test," so there is no way you'd meet the compelling interest/necessary means test?
ANSWER: That has always been my understanding, as the Court elsewhere in those opinions clearly discusses the right at issue as being "fundamental."
QUESTION: My confusion or question then goes to the Lawrence case.
ANSWER: You and me both.
QUESTION: Even though the Court does not declare the right in Lawrence to be fundamental, can't we look at the law in two ways: (1) This is not a right to sodomy as the dissent points out but simply the right to privacy again, and therefore an implicit use of the Strict Scrutiny Test? and (2) Even if it is not a fundamental right, since it is certainly viable that a moral code interest may not be "legitimate" meaning the court could also say the Texas law does not even meet the rational basis test and, regardless of whether the right is fundamental, there is no way that the State could prevail.
ANSWER: You have hit on precisely the question that I have for all of you -- namely, what exactly is the Court doing in Lawrence? And you have laid out the two basic interpretations that seem possible. Notice, though, that there are problems with each. If the right in Lawrence (however we describe it) is fundamental, that has several implications for what other sorts of laws should be subjected to strict scrutiny, implications that the majority takes pains not to imply. On the other hand, if this law fails the rational basis test because the view that the conduct in question was immoral was an illegitimate interest, that could have some profound implications as well. What about our moral judgment about other practices, sexual or otherwise? Would that reading of Lawrence suggest that the majority's view of morality, at least by itself, cannot be a legitimate state interest? No easy answers here, and the Court is quite cagey about how it phrases its analysis.