Rights and Regulation: Lawrence v. Texas and the Evolution of Sexual Regulation

Melissa Murray University of California, Berkeley - School of Law

August 27, 2015

Columbia Law Review, Forthcoming

Abstract:

Since it was decided in 2003, Lawrence v. Texas has underwritten the effort to expand access to marriage to same-sex couples. It is curious that Lawrence has served as a foundation for same-sex marriage. After all, Lawrence was not a case about marriage — same-sex or otherwise. Instead, Lawrence was a case about criminal sex, and more specifically about limiting the state’s authority to regulate and punish non-marital sex and sexuality. In short, Lawrence was a case about sexual liberty. 

The focus on Lawrence as a waystation to same-sex marriage has allowed us to overlook a developing threat to Lawrence’s values of sexual liberty and limits on the state’s authority to regulate and punish non-marital sex. As this Essay explains, in the twelve years since Lawrence was decided, an alternative system of sexual regulation has quietly taken shape and become more visible. Meaningfully, this alternative system is distinct from both the criminal sexual regulation that preceded Lawrence and the marital sexual regulation that has flourished in Lawrence’s wake. 

But while it exists outside of either criminal law or marriage law — the two domains that, historically, have served as the principal sites of state sexual regulation — this alternative system of civil regulation nonetheless incorporates the values of both of these regulatory domains by condemning and punishing sex outside of marriage. And, perhaps most troublingly, this civil system of sexual regulation resists the constitutional protections for non-marital sex that Lawrence conferred. 

This Essay surfaces and explores this emergent form of civil sexual regulation that, until now, has been neglected and overlooked. As it explains, this alternative system of civil sexual regulation achieves many of the same punitive ends that criminal sexual regulation accomplished before Lawrence, and in so doing repudiates Lawrence’s core values. In this way, this system of civil regulation poses a threat to the prospect of greater liberty in intimate life.

Disponível em: <http://ssrn.com/abstract=2652479>. Acesso em 13 set. 2015.