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Looking at Lawrence as an Eighth Amendment case

By Douglas A. Berman

Thanks to this post at CrimProf, I just noticed this intriguing piece by Sheldon Bernard Lyke on SSRN, which is titled "Lawrence as an Eighth Amendment Case: Sodomy and the Evolving Standards of Decency." Here is the abstract: This Article offers an alternate reading of Lawrence v. Texas, the 2003 U.S. Supreme Court case that struck down the Texas sodomy statute that criminalized private, consensual, and adult same-sex intercourse.  While most scholars discuss Lawrence as a substantive due process case and struggle to find meaning in the ambiguity of the decision?s language, I propose that Lawrence is better read as an Eighth Amendment case.  This Article argues that the majority opinion analyzed the constitutionality of the Texas sodomy law as it would analyze the cruelty and unusualness of a criminal law in an Eighth Amendment evolving standards of decency case...continue to full post

Full post as published by Sentencing Law and Policy on September 20, 2009 (boomark / email).