Content area
Full Text
INTRODUCTION
On their faces, Washington v. Glucksberg1 and Lawrence v. Texas2 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. Hardwick3 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.4 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.5 It is here that Lawrence and Glucksberg collide.
Glucksberg shared Bowers's narrow view of the Due Process Clauses and its similarly restricted approach to interpreting them. This approach comprises five distinct analytical tools,6 which I will refer to as the "Glucksberg Doctrine."
Although the Lawrence majority opinion never cited Glucksberg, the aspersions Lawrence cast on Bowers inevitably fell with equal force on Glucksberg. Indeed, Lawrence so strongly denounced narrow interpretations of the Due Process Clauses that one might reasonably wonder whether Lawrence intended implicitly to repudiate Glucksberg through its explicit rejection of Bowers. Many commentators have reached essentially this conclusion, predicting that Lawrence would usher in a new era of expanded constitutional freedoms.7
So far, the commentators have been wrong. My survey of 102 cases applying Glucksberg since the day the Supreme Court decided Lawrence (the "Glucksberg Survey")...