I undertake in this article the task of exploring the impact of the punishment cases in resolving one particular controversial family law issue involving the possible existence of a juvenile’s constitutional right to engage in sexual conduct prohibited by the state and against the wishes of that juvenile’s parents. While the Supreme Court has seldom decided cases involving direct claims by children of constitutional rights disfavored by their parents, assertions by minors of constitutionally protected sexual liberty have become more prevalent of late in light of the Supreme Court’s recognition in Lawrence v. Texas of a constitutionally protected right, at least for adults, to privately engage in consensual sexual intimacy.
I will examine Lawrence’s possible applicability to minors, taking into account the Supreme Court’s punishment cases, in an assessment of the constitutionality of fornication statutes applied to juveniles. I will show that prior to the Court’s pronouncement of its categorical adolescent/adult distinction in the punishment cases, the post-Lawrence constitutionality of regulating teenage sexual behavior under fornication statutes was uncertain. With the guidance of the punishment cases, however, such statutes are clearly constitutional.
© 2013 BYU J. Reuben Clark Law School
Martin R. Gardner,
The Categorical Distinction between Adolescents and Adults: The Supreme Court's Juvenile Punishment Cases—Constitutional Implications for Regulating Teenage Sexual Activity,
28 BYU J. Pub. L.
Available at: http://digitalcommons.law.byu.edu/jpl/vol28/iss1/2