November 2006 Vol. 105 No. 2 THE REVIEW

The Glucksberg Renaissance: Substantive Due Process since Lawrence v. Texas

Brian Hawkins

On their faces, Washington v. Glucksberg and Lawrence v. Texas seem to have little in common. In Glucksberg, the Supreme Court upheld a law prohibiting assisted suicide and rejected a claim that the Constitution protects a “right to die”; in Lawrence, the Court struck down a law prohibiting homosexual sodomy and embraced a claim that the Constitution protects homosexual persons’ choices to engage in intimate relationships. Thus, in both subject matter and result, Lawrence and Glucksberg appear far apart.

The Lawrence Court, however, faced a peculiar challenge in reaching its decision, and its response to that challenge brings Lawrence and Glucksberg into conflict. Only seventeen years before Lawrence, the Court in Bowers v. Hardwick  faced essentially the same claim as in Lawrence, but reached the opposite conclusion—that is, Bowers declared that the Constitution provides no protection for homosexual sodomy. The Lawrence Court, therefore, had to justify overruling Bowers while simultaneously supporting its own conclusion.

As it happens, Lawrence did not so much seek to justify overruling Bowers as it sought to eviscerate it. Lawrence challenged nearly every aspect of Bowers, including assumptions found only in one justice’s concurring opinion. Most pertinent for this Note is Lawrence’s attack on Bowers’s method of constitutional interpretation—a method reflecting skepticism about the Supreme Court’s authority to use the Due Process Clauses of the Fifth and Fourteenth Amendments to establish constitutional protection for rights not mentioned in the Constitution’s text. It is here that Lawrence and Glucksberg collide.

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