CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Saturday, July 9, 2011

Strader on Lawrence's Criminal Law

Kelly Strader (Southwestern Law School) has posted Lawrence's Criminal Law (Berkeley Journal of Criminal Law, Vol. 16, p. 41, 2011) on SSRN. Here is the abstract:

In Lawrence v. Texas, the United States Supreme Court issued a potentially revolutionary criminal law decision. When overturning its earlier ruling in Bowers v. Hardwick and holding Texas’s sodomy statute unconstitutional, the Court plainly rejected majoritarian morality as the governing criminalization theory. Instead, the Court adopted the “harm principle,” requiring that governments justify criminal laws based upon a demonstrable showing of harm. The Court also required that the lower courts, when assessing criminal laws affecting sexual behavior, do so in a sexually neutral manner. In this way, the Court rejected the heteronormative paradigm that the Hardwick decision had constitutionalized.

When applying Lawrence, however, lower courts have been remarkably resistant to the decision’s substantive criminal law doctrine. Courts continue to justify criminal statutes based upon majoritarian morality. Moreover, courts continue to apply heteronormative principles to laws governing sexual behavior in ways that cast sexual minorities into effective sexual apartheid. This article analyzes Lawrence as the groundbreaking criminal law decision that it is. Focusing on sodomy and sex toy laws, the article uses Lawrence’s underlying rationale to conceptualize a harm-based, sexually neutral approach to criminalization. The article then constructs a framework for applying Lawrence’s substantive criminal law going forward, requiring that courts assess criminal statutes under the meaningful rational basis test that Lawrence requires.

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