1. Is the Lochner opinion almost identical to the Lawrence opinion (if we substitute the right of consenting adults to enter into sexual relationships for the right of adults to make contracts)?
Should Lochner be revived to strike down meddlesome laws interfering with freedom of contract? Minimum wage laws? Labor laws? Employment discrimination laws?
Does the 14th Amendment codify Mr. Vatsyayana's Kama Sutra?
Apparently it does. See p. 680 noting that the 14th Amendment does indeed protect the liberty of "two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle." I would think it also protects the liberty of consenting adults to engage in sexual practices common to a heterosexual lifestyle.
What about consensual sex among more than two consenting adults? Protected by Lawrence?
What about consenting adults who choose to enter into a sex-for-pay encounter? Is consensual prostitution protected by the liberty of sexual autonomy?
If not, why not? Which consensual adult sexual practices are protected by SDP and which are not? And how do we know?
2. Did the Lawrence Court recognize a new fundamental right to sexual autonomy for consenting adults under SDP? Did the Court apply strict scrutiny or a rational basis test in Lawrence? See p. 680: "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." Are there legitimate state interests in regulating sexual conduct? Public morality? Health?
3. If public morality is no longer even a legitimate state interest, what is the constitutional standing of animal cruelty laws which make it a crime for a person to mistreat his dog or cat?
Notice Justice Kennedy's hubristic assertion on p. 680 about if only the Founders had "known the components of liberty in its manifold possibilities" they would have written a right to sexual autonomy into the text of the Constitution. Thoughts? If their times could blind the Founders to the goodness of sexual autonomy might Justice Kennedy be blinded by the zeitgeist of his times? Should we allow the democratic process in the 50 states to speak for our times?
