Lawrence V. Texas - The Level of Scrutiny Applied in Lawrence

The Level of Scrutiny Applied in Lawrence

Justice Scalia and others have noted that the majority did not appear to apply the strict scrutiny standard of review that would be appropriate if the Lawrence majority had recognized a full-fledged "fundamental right." He wrote the majority, instead, applied "an unheard-of form of rational basis review that will have far-reaching implications beyond this case."

Nan D. Hunter has argued that Lawrence used a new method of substantive due process analysis, and that the Court intended to abandon its old method of categorizing due process rights as either "fundamental" or "not fundamental" as too restrictive. Justice Souter, for example, argued in Washington v. Glucksberg that the role of the Court in all cases, including unenumerated rights cases, is to ensure that the government's action has not been arbitrary. Justice Stevens has repeatedly criticized tiered scrutiny and prefers a more active judicial balancing test based on reasonability.

Lower courts have read Lawrence differently on the question of scrutiny. In Lofton v. Secretary of the Department of Children and Family Services the United States Court of Appeals for the Eleventh Circuit upheld a state law barring adoption of children by homosexuals, holding explicitly that Lawrence did not apply strict scrutiny. In Witt v. Department of the Air Force, the United States Court of Appeals for the Ninth Circuit held that Lawrence applied intermediate scrutiny.