QUESTION: I was just wondering in the Lawrence case why the comments after the case said that the Court did not explicitly spell out a standard for scrutiny when it seemed to me the Court was applying rational basis, as they used the language "legitimate" when discussing the State's interests?
ANSWER: Terrific question, and we will spend some time on this in class. You are of course correct that, near the end of the opinion, the Court states: "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." This seems to connote rational basis review. But if the Court were actually applying rational basis review, why would it have talked at such length about the importance of the liberty interest at stake? If this were really rational basis review, then wouldn't the right at issue in Lawrence (however, exactly, we want to characterize it) be no more significant, for purposes of constitutional law, than the right of opticians to grind lenses without a prescription, or the right of milk distributors to sell skim milk with vegetable oil? The problem is that everything that precedes the sentence you identify suggests that this right is more important than the sorts of "rights," if we can even call them that, that trigger mere rational basis review. Indeed, every law, at least in theory, must be rationally related to a legitimate government interest to satisfy due process. So if any law would receive rational basis review, what explanation can there be for the Court to explain, over 30 pages, why what is at stake is more than just any right? We have to make sense of the whole opinion in its entirety, and not just that one sentence in isolation.