[Chapter 9: THE DUE PROCESS, CONTRACT, AND JUST COMPENSATION CLAUSES

[2. Protection of Personal Liberties

[C. Personal Autonomy]

• What regulation is challenged, and on what ground?
• Is the crime defined by the statute a "status crime", or a "conduct crime"? What difference does or should that make?
• Is the case distinguishable from Bowers v. Hardwick (discussed in the opinions)?
• Could the Court strike this law down without calling the Bowers decision itself into question?
• if so, on what theory?
• Does Justice O'Connor's opinion provide such a theory?
• Is the case distinguishable from Romer v. Evans (discussed in the opinions)?
• could the Court have struck this law down on the same theory as Romer?
• If so, does Romer call the Bowers decision into question?
• Bowers was decided after Griswold v. Connecticut and Roe v. Wade, but before Casey.
• Does Casey implicitly call Bowers into question in a way that the previous cases did not? If so, how?
• Could a state now enforce a law making adultery a crime? Does Eisenstadt v. Baird demand a negative answer?
• What is the relevance of the British and European Court of Human Rights decisions referred to by Justice Kennedy (Supp. pp. 54-5)?
• Does he treat them as precedent for the interpretation of the U.S. constitution?
• If so, can that be justified?