The past few weeks have provided more evidence of confusion and disagreement in the federal courts about the meaning and implications of Lawrence v. Texas, and specifically whether that decision recognized a fundamental right or merely applied a rational-basis test to the Texas sodomy law.
Today, in Seegmiller v. Laverkin City, a panel of the Tenth Circuit unanimously upheld a city's private oral reprimand of a police officer for an adulterous affair she had with another officer not in her department. The city concluded that the affair interfered with her duties as an officer. The officer then challenged the reprimand on state and federal tort and constitutional grounds citing, in part, Lawrence. The unanimous panel opinion held that Lawrence did not recognize a fundamental right to private adult sexual intimacy, but instead struck down state sodomy laws as irrational.
The Tenth Circuit parted company with (but did not cite) recent opinions by both the First Circuit, which applied a balancing test to a challenge to "Don't Ask, Don't Tell" yesterday based on Lawrence, and with the Ninth Circuit, which last month applied intermediate scrutiny to a DADT challenge based on Lawrence. In so doing, the Tenth Circuit repeated some of the arguments that other courts and Justice Scalia have made about the decision. Like other courts, the panel even cited Justice Scalia's dissent as an authoritative guide to the meaning of Justice Kennedy's majority opinion in Lawrence:
One of the Court's most recent opinions concerning substantive due process also counsels against finding a broad-based fundamental right to engage in private sexual conduct. In Lawrence v. Texas, 539 U.S. 558 (2003), the Court struck down a Texas law that criminalized homosexual sodomy. But nowhere in Lawrence does the Court describe the right at issue in that case as a fundamental right or a fundamental liberty interest. It instead applied rational basis review to the law and found it lacking. Lawrence, 539 U.S. at 578 (stating the Texas statute in question "furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual"); see also id. at 594 (Scalia, J., dissenting) (noting that majority applied "rational basis" test to overturn statute). As one recent decision aptly noted, the Court declined "to recognize a fundamental right to sexual privacy . . . where petitioners and amici expressly invited the [C]ourt to do so." Williams, 378 F.3d at 1236.
Nor did the Lawrence Court conclude that an even more general right to engage in private sexual conduct would be a fundamental right. See id.; see also Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 745 n.32 (5th Cir. 2008) (explaining "Lawrence did not categorize the right to sexual privacy as a fundamental right"); Muth v. Frank, 412 F.3d 808, 817 (7th Cir. 2005) (holding "Lawrence . . . did not announce . . . a fundamental right, protected by the Constitution, for adults to engage in all manner of consensual sexual conduct"); Lofton v. Sec. of Dept. of Children and Family Servs., 358 F.3d 804, 817 (11th Cir. 2004) ("We conclude that it is a strained and ultimately incorrect reading of Lawrence to interpret it to announce a new fundamental right."). Indeed, as we noted above the Court resolved the constitutionality of Texas's sodomy law in Lawrence by applying the rational basis test, rather than heightened scrutiny. See Lawrence, 539 U.S. at 578.
Op. at 18-19.
For reasons both Eugene and I have given elsewhere (see posts here and here), I think these arguments about the meaning of Lawrence are unconvincing. The context in which the Lawrence court placed its discussion of the private sexual conduct at issue, linking the conduct to the Court's fundamental right to privacy, contraception, and abortion cases, indicates to me that the Court believed it was dealing with a fundamental right. As I argued in the Minnesota Law Review shortly after the decision, on rational basis review, the Texas sodomy law would probably have been upheld, foolish and demeaning as it was on policy grounds. So it seems to me that something more than rational-basis review was applied. Additionally, the Court's failure to mention a standard of scrutiny or to use talismanic words that fit neatly into the Court's earlier opinions, while frustrating to lower courts and to legislatures, is hardly unprecedented. But it has to be admitted that other interpretations of Lawrence are plausible, including the one the Tenth Circuit adopted today.
It may be that state and federal governments, in their capacity as managers of large numbers of employees, should be given considerable leeway in making employment decisions related to work performance. Perhaps Lawrence should be largely limited to protecting from state law infrigement the private sexual lives of private citizens. Perhaps, as in other constitutional contexts, the government should be free to limit its own employees' behavior in ways that would be unacceptable if applied to a private citizen. As with the military context in the recent challenges to DADT, the public employment context in the Tenth Circuit case may make Seegmiller special, requiring more-than-usual deference to state decisionmaking.
Those considerations aside, the Tenth Circuit opinion adds to the need for some guidance from the Supreme Court. This isn't news to most of us who've struggled to understand Justice Kennedy's opinion, but it is now clear that nothing about Lawrence is clear. One group of courts believes that Lawrence was a rational-basis case; another group believes Lawrence was somewhere between rational basis and strict scrutiny; and a few courts and some commentators suggest it was a fundamental-right case. There is a real and growing circuit split on this basic doctrinal issue with potential consequences to a range of governmental policies. Whatever one thinks of the result in Lawrence, the Supreme Court has created a mess that only it will be able to clean up.
(Thanks to reader Elliot Scott for pointing me to the decision.)