Tussle of the Titans: Secunda v. Carpenter

Posted on Categories Speakers at Marquette

There was a great debate this noon between our own Professor Paul Secunda and Dale Carpenter of Minnesota. The question before the house was the meaning of Lawrence v. Texas, a 2003 Supreme Court decision which struck down a state law prohibiting homosexual sodomy. Both Professors Secunda and Carpenter agree that the majority decision, written by Anthony Kennedy, was rather opaque (I regard this as kind), leaving us uncertain as to just what type of right it recognized and how similar claims might be assessed in the future.

In Professor Carpenter’s view, Lawrence should be read to recognize a fundamental right to sexual autonomy. State interference with this right should presumably be subject to strict scrutiny. Professor Secunda argues that Lawrence cannot be read in this way, but, instead, ought to be understood as a move away from strictly tiered scrutiny toward a balancing approach applying rational basis scrutiny with, I suppose, more or less “bite” depending upon the nature of the liberty interest infringed. It is my impression that the nature of this more “carniverous” form of review (I can’t help myself) would depend on some notion of what forms of human autonomy are most compelling and a regard for the need to protect discrete and insular minorities, a view that, for me, recalls John Hart Ely’s  masterwork Democracy and Distrust.

Both Professors Secunda and Carpenter argued forcefully for their positions.

My own sense is that Professor Secunda may have a stronger descriptive argument, i.e., the stronger rationalization of what Lawrence actually says, while Professor Carpenter’s view may turn out to be closer to how Lawrence is ultimately understood.

My own preference is that Lawrence should be read as applying rational basis scrutiny to an extraordinarily silly law. But that view is influenced by my skepticism toward the project of identifying extratextual fundamental rights — a skepticism that Professors Carpenter and Secunda may not fully share.

Congratulations to the American Constitution Society, Federalist Society, and Out and Allies organization for sponsoring this fine event.

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