For those who want some further reading -- other than the cases themselves -- to Flagrant Conduct, there are several books that talk about legal matters involving what might completely be called the GLBTQ community. The Landmark Cases series has a book on The Sodomy Cases, which some Bronx book guy reviewed over at Amazon:
This is somewhat of a rambling account of the "Sodomy Cases," namely Bowers v. Hardwick and Lawrence v. Texas. An ironic name given the latter case reminds us that these cases are not about a particular sex act alone, but the right of privacy, equality and liberty for homosexuals and others that goes beyond "sodomy" itself. Or, as the author notes here, freedom over one's intimate life. [more at link]The series book on Griswold v. Connecticut is better and along with the more tome like work Liberty and Sexuality provides an overall look at privacy cases as a whole. Courting Justice: Gay Men And Lesbians v. The Supreme Court (as an earlier book shows, the authors are a couple) is a laywoman's comprehensive look at the issue from the WWII (when there was perhaps a gay justice) to right before Lawrence, the law of which gets a mention in another case. And, of course there are lots of books on various GLBTQ issues and history, down to Out Behind the Desk: Workplace Issues for LGBTQ Librarians.
Lawrence v. Texas gained strength from history and underlined that when defining the contours of the Due Process Clause that history is not fixed to the time of the framing of the Fifth or Fourteenth Amendment. In fact, it set forth the last fifty years as the most determinative. This "common law" approach, which recognizes developments in society and society's laws as an important factor in fleshing out "liberty" (and striking down certain laws or official actions violating the generally accepted understanding or an evenhanded application of it via federal judicial review) is not to the liking of everyone. This is notwithstanding (see, e.g., Seriatim, discussing the justices in the first decade of the Supreme Court and here) that many probably thought this was the way to go from the beginning. Some would leave things more to the people:
The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.Justice Scalia* also takes this approach as did CJ Rehnquist to large effect though both were less accepting of democratic and local decision-making when they felt the Constitution clearly compels the opposite, including when its very words does not expressly seem to do so to others. Suffice to say that I and others think it also limits legislatures when privacy and equal protection rights of this sort are at stake. Nonetheless, particularly given that the courts often follows its lead (the book noted the strategy of reassuring the Supreme Court that it was merely following what the public has broadly accepted, not some broad open-ended thing like same sex marriage), the public and its legislators and state courts matter a lot. When Republicans and state legislatures go too far respecting reproductive health and there is a backlash, it reaffirms:
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.Note, "necessary and proper" can apply to rights and powers as shown by the changing views of economic regulations in the 1900s. Also, societal practices -- such as in sexual matters -- can be a means to show the contours of these "truths" even if laws on the books, particularly if applied strictly and harshly, might be cited in contrast. Early practice brought forth few laws and much determined by "common law," but practice continues to have some force even today. The proper line there was always debated, as it continues to be, but few are strictly on one side or the other. Ironically, even many (like the Tea Party) that appeal to originalism shows the truth of this dynamic. There is some dissonance there in that original understanding and history is cited when the it doesn't quite take them where they want to go. History is understood through the gloss of their own experiences and understandings.
Reality can be denied but it is still there.
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* One thing that some appreciate about Scalia is that he actually responds to the opinions of other justices, be it via majority opinion, concurrence or dissent. This is appreciated but it might be more so if he tried a bit more to actually walk in the shoes of the justices a bit more instead of viewing things -- like the most biased Internet comment on some blog -- firmly through his eyes, and often sneering while doing so.
His dissent in Lawrence is of this character and Thomas' brief dissent that he thinks the law is "silly" but that it still isn't unconstitutional (ala Justice Stewart in Griswold) loses some of its charm in that Thomas joins such a screed. The word is apt and it is a shame that such non-judicial temperament is found in a justice deemed the model for many people.
The state was never really that gung ho about defending the law and the unprepared D.A. who did the oral argument (most of the work below was done by someone else) cheapened the affair (yeah, like the previous sodomy case, it turns out he was having an affair too) by not providing even a half-way credible performance. If nothing else, Paul Clement should do a better job of it with the PPACA and DOMA.