The Glucksberg Renaissance: Substantive Due Process since Lawrence v. Texas

On their faces, Washington v. Glucksberg and Lawrence v. Texas seem to have little in common. In Glucksberg, the Supreme Court upheld a law prohibiting assisted suicide and rejected a claim that the Constitution protects a “right to die”; in Lawrence, the Court struck down a law prohibiting homosexual sodomy and embraced a claim that the Constitution protects homosexual persons’ choices to engage in intimate relationships. Thus, in both subject matter and result, Lawrence and Glucksberg appear far apart. The Lawrence Court, however, faced a peculiar challenge in reaching its decision, and its response to that challenge brings Lawrence and Glucksberg into conflict. Only seventeen years before Lawrence, the Court in Bowers v. Hardwick faced essentially the same claim as in Lawrence, but reached the opposite conclusion-that is, Bowers declared that the Constitution provides no protection for homosexual sodomy. The Lawrence Court, therefore, had to justify overruling Bowers while simultaneously supporting its own conclusion.