AS is widely known, in June 2010 the Supreme Court issued its opinion in McDonald v. City of Chicago, holding that the Due Process Clause of the Fourteenth Amendment makes the Second Amendment binding on the states. The strong public and scholarly interest in the case is due, in large part, to the controversial nature of the right that was incorporated, but also to excitement (at least among scholars) over the first incorporation in roughly forty years. Despite this broad interest, one feature of McDonald appears to have gone so far unnoticed: the right to keep and bear arms is not the sole provision of the Bill of Rights that the opinion incorporates, for the first time, against the states. This oversight is understandable, however, because while the incorporation of the Second Amendment prompted over two hundred pages of opinions, the incorporation of the second provision, the Excessive Bail Clause of the Eighth Amendment, required only a footnote.
Online
Expanding Congressional Power in Gonzales v. Carhart
In Gonzales v. Carhart (Carhart II), the Court delivered a setback to a woman’s right to choose by affirming the constitutionality of the Partial-Birth Abortion Ban Act of 2003 (“Ban Act”). In doing so, however, the Court enlarged the scope of congressional power. The Court deferred to Congress’s factual findings and allowed Congress to determine for itself that an exception for the health of the mother was unnecessary. This deference, although disheartening inCarhart II, is promising for future civil rights legislation.
Seven years ago in Stenberg v. Carhart(Carhart I), the Court held that substantive due process requires that every piece of abortion legislation contain an exception for the health of the mother.Carhart I interpreted Planned Parenthood of Southeastern Pennsylvania v. Casey to mandate a health exception when “substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women’s health.” The Court in Carhart Idid not specify whether Congress or the Court is the appropriate body to judge the strength of the medical authority and determine whether a health exception is necessary.
Remaking Lawrence
It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle.
These sentences appeared in the Supreme Court’s decision Lawrence v. Texas, which struck down sodomy laws as violating liberty protections for private sexual conduct. The decision was a watershed moment for civil rights and civil liberties advocates. For gay rights activists, the decision represented a movement toward sexual equality: “when the history of our times is written, Lawrence may well be remembered as the Brown v. Board of gay and lesbian America.” For civil libertarians, Lawrence marked another victory for privacy rights, namely that consenting adults have the right to engage in relations free from government intrusion. One article aptly described the decision as the Court drawing “a thick constitutional curtain around the nation’s bedrooms.”
Fast forward ten years. Arguments for the freedom of sexual expression, intimate association, and individual liberty that successfully prevailed in one set of circumstances—the decriminalization of sodomy—have been put to use in legal challenges involving gay and lesbian adoption, military service, and same-sex marriage. While Lawrence is invoked quite frequently and almost reflexively, lower courts rarely cite it as controlling precedent, and some have scoffed at attorneys for drawing on the decision to make their case. In the instances in which Lawrence takes center stage in a decision, its meaning either has a different application than when it was decided in 2003, or it is used in large part to strike down morality-based laws.5 These developments raise an important question only Tina Turner could style: What’s Lawrence Got to Do With It?