Hastings Constitutional Law Quarterly


Elliot Wong


In its landmark 2003 decision of Lawrence v. Texas, the United States Supreme Court articulated that a ban on homosexual sexual conduct had a meaningful and negative effect on the lives of homosexuals. So significant was the effect on homosexuals that ultimately the Court declared the ban on the underlying conduct unconstitutional.

Following Lawrence, courts and commentators have questioned the true effects of the Court's broad language. The Court's opinion relies heavily on the adverse practical effect the ban had on homosexual persons. But what exactly did Texas' unconstitutional law really target? Was it homosexuals as a group, was it a specific type of conduct, or are the two indistinguishable? Substantive due process protects the right to engage in certain types of conduct, but what role-if any-do particular groups play in determining how those acts are judged?

Many groups are inherently tied to and exist as sets of individuals who are defined by particular courses of conduct. The law, however, does not necessarily consider the effects on such groups when regulating underlying conduct. Furthermore, only certain groups play this crucial and implicit, role in how the specific conduct is viewed. Lawrence illustrates the Court's recognition of negative impacts on certain conduct-defined groups, yet only to a subset of such groups are given special consideration. Where do we drawn the line?

This Note argues the strength of the relationship between the group and the underlying conduct is crucial to identifying which conduct-defined groups should be afforded special consideration. The key difference between these subsets is that some groups evolve beyond their defining conduct, while other groups exist solely by the individuals who engage in a particular set of actions. Using Lawrence's as an example where the Court saw homosexuals as not being defined solely by their sexual conduct, it is argued that groups which evolve receive special consideration by the Court, while the rest do not. The level of impact such special consideration regarding the adverse effects on particular groups has on overturning laws remains unclear.