Source: Matthew W. Green, Jr., Berkeley Journal of Employment and Labor Law, Vol. 29 no. 9, 2008
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 claims 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.