"actions that violate
A "PRESUMPTION OF LIBERTY"In addition — and as the dissent notices — now there is no pretense of a "fundamental right" rebutting the "presumption of constitutionality." If you reread his opinion, you will see that Justice Kennedy never mentions any presumption to be accorded the Texas legislature. More importantly, he never tries to justify the right to same-sex sexuality as fundamental. Instead, he puts all his energy into demonstrating that same-sex sexual freedom is a legitimate aspect of liberty — unlike, for example, actions that violate the
rights of others , which are not liberty but license.
Randy E. Barnett,
commentary on the Lawrence versus Texas sodomy case before the Supreme Court, 2003
[spooner.org]