The Domesticated Liberty of Lawrence v. Texas

Abstract

In this Commentary, Professor Franke offers an account of the Supreme Court's decision in Lawrence v. Texas. She concludes that in overruling the earlier Bowers v. Hardwick decision, Justice Kennedy does not rely upon a robust form of freedom made available by the Court's earlier reproductive rights cases, but instead announces a kind of privatized liberty right that allows gay and lesbian couples the right to intimacy in the bedroom. In this sense, the rights-holders in Lawrence are people in relationships and the liberty right those couples enjoy does not extend beyond the domain of the private. Franke expresses concern that Lawrence risks domesticating the gay and lesbian civil rights movement. She argues that the limited scope of the Lawrence opinion, as well as the gay community's reaction to it, can be traced, in large part, to the palimpsestic presence of Bowers in the opinion and in the political organizing that has followed it.