Lawrence and Legitimate State Interests

In Lawrence, the State of Texas claimed that public morality provided a rational basis for its law forbidding homosexual anal sodomy. The Court held that "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice." (edited from this edition of casebook)


Suppose instead of relying on public morality, the State of Texas had argued that the sodomy law furthers a strong governmental interest in public health? Is public health a rational basis for upholding a law prohibiting conduct that has serious health consequences?




Consider the following link from the Center for Disease Control:



1. HIV/AIDS and Men Who have Sex With Men


Here is an excerpt from this CDC study:



"The term men who have sex with men (MSM) refers to all men who have sex with other men, regardless of how they identify themselves (gay, bisexual, or heterosexual). In the United States, HIV and AIDS have had a tremendous impact on MSM. Consider these facts:


* AIDS has been diagnosed for more than half a million MSM. Over 300,000 MSM with AIDS have died since the beginning of the epidemic.


*MSM made up more than two thirds (68%) of all men living with HIV in 2005, even though only about 5% to 7% of men in the United States reported having sex with other men....



*For complex reasons, HIV/AIDS continues to take a high toll on the MSM population. For example, the number of new HIV/AIDS cases among MSM in 2005 was 11% more than the number of cases in 2001. It is unclear whether this increase is due to more testing, which results in more diagnoses, or to an increase in the number of HIV infections. Whatever the reasons, in 2005, MSM still accounted for about 53% of all new HIV/AIDS cases and 71% of cases in male adults and adolescents.

See also CDC Basic AIDS Statistics information (good link).

Suppose Texas enacts its law prohibiting anal MSM conduct. Assuming a rational basis test applies, is the law rationally related to the state's legitimate interest in protecting public health by regulating this type of conduct?

Apart from the liberty interests involved (consenting adults right to contract vs. consenting adults engaged in sexual relationships), the majority opinions in Lochner and Lawrence are strikingly similar. Both reject public morality (social justice in the one case, and sexual morality in the other) as legitimate state interests for interfering with "liberty;" both refuse to recognize legitimate public health interests as justifications for the laws invalidated; and both reflect the ideological preferences of the "lawyer class" at the time the decisions were handed down.In Lochner, the Court seemingly enacted "Mr. Herbert Spencer's Social Statics" as a constitutional right, and in Lawrence the Court seemingly enacted Mr. Vatsyayana's Kama Sutra as the law of the land.