Anomalies, Warts and All: Four Score of Liberty, Privacy and Equality

Lawrence was decided exactly eighty years after the first liberty-privacy case, and in the midst of a fierce kulturkampf striving to roll back civil rights generally. In this Article, Professor Valdes situates Lawrence in the context formed both by these four score of liberty-privacy jurisprudence that precede it as well as by the politics of backlash that envelop it today. After canvassing the landmark rulings from Meyer in 1923 to Lawrence in 2003, in the process acknowledging both their emancipatory strengths and their traditionalist instrumentalism, Professor Valdes concludes that Lawrence is a long overdue recognition of the prior precedents and their actual outcomes. This belated recognition, entailing a repudiation of Bowers, reflects similar weaknesses and strengths but also effectively sets the stage for a resumption of jurisprudential developments under the Fourteenth Amendment interrupted by that 1986 anomaly. These pending developments, Professor Valdes concludes, logically and substantively point to the formal recognition of the individual right already protected under the eight decades of liberty, privacy and equality law preceding Lawrence. That right, Professor Valdes states, is properly denominated as the right to sexual self-determination, embedded principally in the liberty text of the Due Process Clause and buttressed by other provisions or sources of constitutional la