Lawrence v. Texas enters The Bob Zadek Show not as a subject in its own right but as a waypoint in two separate discussions of constitutional law. In the first, a guest narrates it as part of a developing doctrine of unenumerated rights; in the second, a different guest cites it as an example of courts expanding personal freedom when they federalize a policy question. Neither excerpt examines the case’s facts, its holding, or the reasoning of the opinion. What the sources offer is therefore a record of how the case was invoked, not an account of the case itself.
The liberty line from Griswold to Obergefell
In the May 2022 episode on the draft Dobbs opinion, Evan Bernick described the shifting methodology by which the Supreme Court has identified unenumerated rights. At the time Griswold and Roe were decided, he said, the method amounted to a shifting coalition of justices deeming certain liberties important enough to elevate to constitutional status, then asking in the next case whether a newly claimed liberty was close enough to one already recognized — a combination of moral intuitions and reasoning by analogy. Dissatisfaction on the part of Chief Justice Rehnquist and the late Justice Scalia with that intuition-heavy, case-by-case approach, Bernick said, led the Court to adopt what is called the Glucksberg framework, after Glucksberg v. Washington, in which a majority decided that unenumerated rights would be identified by asking whether a claimed right was deeply rooted in the nation’s history and tradition. Glucksberg itself involved a claimed right to assisted suicide, which the Court rejected on the ground that it had not existed at common law or in the law of the states. That framework, Bernick said, has since become the dominant, though not the only, method, and in Dobbs it appears in perhaps its most demanding form, with the conclusion that the right to terminate a pregnancy is not protected by the 14th Amendment because it does not satisfy Glucksberg Evan Bernick on the Dobbs Draft (2022).
Bob Zadek framed the discussion by observing that Roe v. Wade did not spring from the earth full-grown, and that Griswold is its progenitor: without an unenumerated right to privacy, he said, the underpinnings of Roe disappear. Bernick agreed that the right to privacy comes from Griswold, the case holding that married couples have the right to use contraceptives, in which the Court said that even though the right to privacy is not stated in the constitutional text it emerges from penumbras and emanations of the Bill of Rights. Setting the metaphysics aside, Bernick said, the point is that Griswold recognizes a right to privacy including certain rights of intimate association, and that this becomes the foundation of a developing doctrine eventually associated less with privacy and more with liberty. By the time of Casey, he said, the Court had said that the best hook for the right to terminate a pregnancy is the right to liberty guaranteed by due process. The fruits of that liberty jurisprudence, in his account, have since come to include the right of same-sex couples to be sexually intimate — Lawrence v. Texas, striking down a ban on same-sex sodomy — and the right of same-sex couples to marry, which is Obergefell v. Hodges, holding that same-sex marriage is constitutionally guaranteed. The inquiry in Dobbs, he concluded, is therefore less about privacy and more about liberty: is the claimed right a liberty guaranteed by the 14th Amendment, and because it cannot be found deeply rooted in the nation’s history and tradition, it is not protected Evan Bernick on the Dobbs Draft (2022).
In this telling Lawrence is one item in a sequence — Griswold, Casey, Lawrence, Obergefell — through which the Court’s unenumerated-rights doctrine migrated from privacy to liberty. The excerpt does not say what provision of the Constitution Lawrence turned on, what the Texas statute provided, or how the Court reasoned; it says only that the case struck down a ban on same-sex sodomy and that Bernick classifies it among the fruits of liberty jurisprudence.
Courts, Congress, and federalization
The August 2022 episode on state freedom rankings returned to Lawrence in a different register. Jason Sorens, discussing two decades of data going back to 2000, reported that overall freedom at the state level has declined, but that this is misleading because it includes the impact of federal policies; excluding those, he said, freedom has increased significantly over time. The biggest single factor in the decline, in his account, is Obamacare, an example of Congress taking over something previously done at the state level and imposing a higher level of health insurance regulation on all states. States left to their own devices, he said, have been increasing freedom over time, especially since about the Great Recession and especially in some of the more red states, and those that do are reaping benefits in stronger economies Ranking Freedom in the 50 States (2022).
Sorens drew a distinction between two channels of federalization. When Congress gets involved and federalizes a policy, he said, it decreases freedom — Obamacare being the biggest example, along with cases such as GMO labeling, where Congress imposed a nationwide regime and preempted state laws. When the courts get involved to federalize something, by contrast, it tends to increase freedom, especially personal freedom, and he named Lawrence v. Texas and Obergefell as examples. The constitutional regime that promotes freedom, he concluded, is an engaged judiciary upholding constitutional limits on government at all levels in the interest of individual rights, combined with a Congress and executive branch held in check Ranking Freedom in the 50 States (2022).
The exchange arose from Bob Zadek’s question whether states are feeling more confident in shrugging aside federal attempts to undo federalism, and whether that observation was too Pollyannaish. William Ruger answered that federalism has been declining since almost the very beginning, partly because of the notion that once the Supreme Court has spoken the states have to line up — a principle he said cuts both ways, citing Heller and the recent Supreme Court case on the New York gun laws as restrictions on states’ ability to set policy that nonetheless run in a pro-liberty direction. Ruger also argued that where federal action is wanted, the constitutional process of amendment is available and was meant to be hard, and that states should push back more, for instance by declining to prioritize enforcement of federal marijuana law relative to personal and property crimes. Sorens agreed with the general finding that federalization by Congress decreases freedom, and added the judicial counterexample in which Lawrence figures Ranking Freedom in the 50 States (2022).
Across episodes: no development
Lawrence v. Texas is touched on in two episodes — the May 2022 discussion of the Dobbs draft with Evan Bernick and the August 2022 state-freedom discussion with Jason Sorens and William Ruger — and the excerpts show no development between them: Bernick treats the case as a step in a doctrinal line from privacy to liberty, while Sorens treats it as an instance of courts federalizing policy in a freedom-increasing direction, and neither treatment responds to the other.
What the sources do not cover
The excerpts do not state the facts of Lawrence v. Texas, the holding of the case in any formulation beyond the striking down of a ban on same-sex sodomy, the constitutional provision on which it turned, or the name of any opinion or justice. They do not describe the Texas statute at issue, the parties, or the date of decision. Nothing in the sources indicates how either guest would assess the reasoning of Lawrence itself, as opposed to its place in a line of cases or its effect on freedom rankings.