Here’s an interesting analysis of Anthony Kennedy’s majority opinion in Lawrence v. Texas, which says Kennedy has turned away from the questionable implied rights argument (e.g., the “right to privacy” that in Griswold v. Connecticut formed the foundation for overthrow contraceptive laws, abortion laws, but which faltered in previous gay rights cases), and has instead adopted a much more defensible right to liberty.
Under this argument, government must justify particular laws that restrict liberty (activities which do not violate the rights of others), rather than people having to demonstrate that their particular desired activity is a “fundamental” (if nonspecified) right to balance against the presumption that laws are constitutional.
In addition — and as the dissent notices — now there is no pretense of a “fundamental right” rebutting the “presumption of constitutionality.” If you reread his opinion, you will see that Justice Kennedy never mentions any presumption to be accorded the Texas legislature. More importantly, he never tries to justify the right to same-sex sexuality as fundamental. Instead, he puts all his energy into demonstrating that same-sex sexual freedom is a legitimate aspect of liberty — unlike, for example, actions that violate the rights of others, which are not liberty but license.
With this as the baseline, the onus then falls on the government to justify the restriction of liberty. Once an action is deemed to be a proper exercise of liberty (as opposed to license), the burden shifts to the government. Though he never acknowledges it, Justice Kennedy here is employing what I have called a “presumption of liberty” that requires the government to justify its restriction on liberty, instead of requiring the citizen to establish that the liberty being exercised is somehow “fundamental.”
All that was offered by the government to justify this statute was the judgment of the legislature that the prohibited conduct is immoral — which for the majority (including, in this regard, Justice O’Connor) is simply not enough, standing alone, to justify the restriction of liberty. Why not? Because this judgment of immorality means nothing more than that a majority of the legislature disapproves of this conduct, which would be true whenever a legislature decides to outlaw something. Such a doctrine would amount to granting an unlimited police power to state legislatures.
Interesting. And, on the face of it, promising.
(via Volokh)