The Aesthetics of Lawrence v. Texas' Moral Vision


This Article clarifies a doctrinal issue that has remained open to debate by both legal scholars and lower courts since the Supreme Court’s 2003 decision in Lawrence v. Texas—namely, whether the Court repudiated morality as a legitimate state interest for lawmaking—by approaching that opinion as a poetic conflict or dialectic between two aesthetic modes, the line and unbounded space or transcendence. Unlike conventional legal analysis, which focuses on what the text of an opinion explicitly says—what it holds and how it gets there—an interpretive strategy that approaches Lawrence in poetic terms and that pays close attention to the stylistic interplay of competing (and conflicting) metaphors and tropes reveals what is implicit in the opinion—the persistence of moral line drawing—and what has otherwise been overlooked by commentators and lower courts alike. This Article contends that, while Lawrence casts doubt on the line that Bowers v. Hardwick drew specifically and on morality’s line-drawing more generally, it, too, draws a line between conduct and status that is unstable and susceptible to critique. Although the Court criticizes its predecessor for drawing an unprincipled, arbitrary, and ultimately untenable distinction between normative and non-normative sexuality, the line that it draws in Lawrence is no less so—particularly given the extent to which same-sex conduct continues to be used after Lawrence to deny access to marriage, just as it was before that case, as well as the extent to which the status of marriage itself might be viewed as a form of private conduct.


Constitutional Law

Date of this Version

September 2005