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== Holding of the Majority, by Justice Kennedy ==

== Holding of the Majority, by Justice Kennedy ==

On ''certiorari'' to the Supreme Court, Justice Anthony Kennedy found the law to be unconstitutional on the grounds of [[substantive due process]], writing an opinion which was joined by Justices David Souter, Ruth Bader Ginsberg, Stephen Breyer, and John Paul Stevens. Kennedy defined Lawrence's rights under the Constitution at a high level of abstraction, arguing that the Texas statute violated the right to intimate conduct in a relationship.  Such a definition of the right (accomplished without using the word "privacy," which seems the obvious doctrinal hook to [[Griswold v. Connecticut|''Griswold'']]) avoided defining sodomy itself as a specific & fundamental right, and instead simply stated that the state had no right to intrude upon intimate relationships.

On ''certiorari'' to the Supreme Court, Justice Anthony Kennedy found the law to be unconstitutional on the grounds of [[substantive due process]], writing an opinion which was joined by Justices David Souter, Ruth Bader Ginsburg, Stephen Breyer, and John Paul Stevens. Kennedy defined Lawrence's rights under the Constitution at a high level of abstraction, arguing that the Texas statute violated the right to intimate conduct in a relationship.  Such a definition of the right (accomplished without using the word "privacy," which seems the obvious doctrinal hook to [[Griswold v. Connecticut|''Griswold'']]) avoided defining sodomy itself as a specific & fundamental right, and instead simply stated that the state had no right to intrude upon intimate relationships.

By avoiding defining intimate, private conduct as a fundamental right, Kennedy certainly side-stepped [[strict scrutiny]], forestalling recognizing homosexuals as a class protected by the higher standard of review normally reserved for only race and gender classifications.  But it must be argued that Kennedy's opinion is in fact something slightly more than rational basis review, for Kennedy states that enforcing the morality of the majority can never be the state interest advanced by a law - an earth-shattering revelation if referring to [[rational basis review]], but not truly groundbreaking if referencing a higher level of review.  Kennedy's opinion, then, is perhaps an iteration of a halfway point between the doctrines, an idea of "rational basis review with teeth," that signifies the Court's willingness to apply strict scrutiny to classifications based on sexuality, but just not yet.  In that sense, the opinion is puzzling.  It disallows moral legislation, but under exactly what standard of review?  The answer is unclear.

By avoiding defining intimate, private conduct as a fundamental right, Kennedy certainly side-stepped [[strict scrutiny]], forestalling recognizing homosexuals as a class protected by the higher standard of review normally reserved for only race and gender classifications.  But it must be argued that Kennedy's opinion is in fact something slightly more than rational basis review, for Kennedy states that enforcing the morality of the majority can never be the state interest advanced by a law - an earth-shattering revelation if referring to [[rational basis review]], but not truly groundbreaking if referencing a higher level of review.  Kennedy's opinion, then, is perhaps an iteration of a halfway point between the doctrines, an idea of "rational basis review with teeth," that signifies the Court's willingness to apply strict scrutiny to classifications based on sexuality, but just not yet.  In that sense, the opinion is puzzling.  It disallows moral legislation, but under exactly what standard of review?  The answer is unclear.