Lawrence: An Unlikely Catalyst for Massive Disruption in the Sphere of Government Employee Privacy and Intimate Association Claims

In 2003, the U.S. Supreme Court handed down Lawrence v. Texas, the landmark decision that overturned a Texas statute proscribing homosexual sodomy. The Supreme Court held that the Texas statute infringed the right of "free adults" to engage in private, consensual, non-commercial sexual conduct in their home. In doing so, the Court overturned a prior case, Bowers v. Hardwick, which had upheld a Georgia sodomy statute. In his Lawrence dissent Justice Scalia predicted that overruling Bowers would cause a massive disruption of the current social order. To substantiate his point, he cites numerous cases, many in the area of public employment, the foundations of which, he contends, are now undermined because of the Court's overruling of Bowers. This article presents a strong argument that the massive disruption theory is unfounded in the area of government employee privacy and intimate association claims. Such clams typically arise when a government employee is terminated or otherwise sanctioned because he or she is involved in a relationship the public employer claims conflicts with the employer's interests. Several reasons support the narrow reading of Lawrence with regard to these claims.Despite Lawrence's invocation of cases discussing fundamental rights the Court failed to state that the right at issue in that case was a fundamental right, and the Court appeared to invalidate the Texas statute under rational basis review. Accordingly, lower courts interpreting Lawrence have held that it created no new fundamental right and likewise have analyzed privacy and intimate association claims that rely for support on Lawrence, including claims brought by public employees, under rational basis review. Such review generally results in upholding the government decision.The article further demonstrates that Lawrence has neither undermined the at-will employment doctrine nor the deference afforded to a government employer to make decisions regarding its workforce, even where those decisions curb a worker's right to enter into a relationship his or her employer contends conflicts with its effective functioning. This article also demonstrates that successful employee claims are rare because numerous lower courts have adopted stringent tests to analyze employee privacy and intimate association claims. Such tests rarely result in employee victories. It is, therefore, unlikely that Lawrence will have a massive effect on employee privacy and intimate association claims.To test this thesis, the article analyzes the cases that Justice Scalia cites in his dissent as now standing on shaky foundation in the wake of Lawrence. The article demonstrates that the holdings of these cases likely survive Lawrence.