Wednesday, January 28, 2004
[Eugene Volokh, 1/28/2004 04:15:59 PM]
Does Lawrence v. Texas recognize a fundamental constitutional right to sexual autonomy? There was a hot debate about this following the Lawrence decision; I argued here that it does.
Today's Eleventh Circuit decision upholding Florida's statutory ban on adoptions by practicing homosexuals shows the importance of this question. The Eleventh Circuit correctly points out that the right to adopt is a creature of statute; there's no constitutional right to adopt.
I think this is (normatively) wrong, although it states current law. If the right to privacy is strong enough that mothers can kill their babies without state interference, the state may not then interfere with the arrangements people make so as not to have to kill their babies. Adoption, including gay adoption, is in that category.
Roe v. Wade (and see Casey) gets around this by distinguishing state interests in born and unborn kids, but i think that is unworkable, and probably a legislative rather than judicial prerogative.
For years i'd been saying it makes no sense to say there is a right of privacy so weak it doesn't protect gay sex in the bedroom but so strong it justifies baby-killing, and the couirt finaly fixed that in lawrence v texas, reversing Bowers v. Hardwick. I haven't read the 11th cir. op.
I'm not against Roe v. Wade per se. My big case, Majors v. Abell, upheld Roe on a minor procedural point about mootness. I'm saying there's a consistency problem.
Does Lawrence v. Texas recognize a fundamental constitutional right to sexual autonomy? There was a hot debate about this following the Lawrence decision; I argued here that it does.
Today's Eleventh Circuit decision upholding Florida's statutory ban on adoptions by practicing homosexuals shows the importance of this question. The Eleventh Circuit correctly points out that the right to adopt is a creature of statute; there's no constitutional right to adopt.
I think this is (normatively) wrong, although it states current law. If the right to privacy is strong enough that mothers can kill their babies without state interference, the state may not then interfere with the arrangements people make so as not to have to kill their babies. Adoption, including gay adoption, is in that category.
Roe v. Wade (and see Casey) gets around this by distinguishing state interests in born and unborn kids, but i think that is unworkable, and probably a legislative rather than judicial prerogative.
For years i'd been saying it makes no sense to say there is a right of privacy so weak it doesn't protect gay sex in the bedroom but so strong it justifies baby-killing, and the couirt finaly fixed that in lawrence v texas, reversing Bowers v. Hardwick. I haven't read the 11th cir. op.
I'm not against Roe v. Wade per se. My big case, Majors v. Abell, upheld Roe on a minor procedural point about mootness. I'm saying there's a consistency problem.
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