Columbia Center for Contemporary Critical Thought
The most renowned substantive criminal law decision of the October 2002 Term, Lawrence v. Texas, will go down in history as a critical turning point in criminal law debates over the proper scope of the penal sanction. For the first time in the history of American criminal law, the United States Supreme Court has declared that a supermajoritarian moral belief does not necessarily provide a rational basis for criminalizing conventionally deviant conduct. The Court's ruling is the coup de grâce to legal moralism administered after a prolonged, brutish, tedious, and debilitating struggle against liberal legalism in its various criminal law representations. Henceforth – or at least until further notice – majoritarian morality no longer automatically trumps liberal argument (whether consequentialist or deontological) in defining the reasonable and permissible contours of the penal code. Justice Byron White's infamous declaration in Bowers v. Hardwick that the criminal law is constantly, and may properly be, "based on notions of morality" no longer stands. Instead, Justice John Paul Stevens's contrary statement from his dissent in Bowers is elevated, in block quote, to supreme law of the land: "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." With much pomp and circumstance, the majority in Lawrence inters legal moralism and crowns liberal legalism. As a matter of federal due process, courts reviewing penal legislation must now deploy some other principle to distinguish between permissible and impermissible majoritarian moral opprobrium.
Foreword: "You Are Entering a Gay and Lesbian Free Zone": On the Radical Dissents of Justice Scalia and Other (Post-) Queers - [Raising Questions about Lawrence, Sex Wars, and the Criminal Law],
J. Crim. L. & Criminology
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/646