SSRN-Taking Lochner Out of the Closet or Liberty of Contract as a Basis for Gay Rights by Joseph Morrissey (H/T Legal Theory Blog):

This article, “Taking Lochner Out of the Closet,” is at the intersection of contract law, constitutional law, and sexual orientation law. The article offers a fresh and neutral analytical framework based on liberty of contract to advance gay rights. The framework might also be applied to other areas of concern where government regulation must be justified.

With respect to gay rights specifically, many of the states of the United States have statutes, constitutional provisions, and court decisions that deny individuals the right to have a family, specifically a spouse and children, based on sexual orientation. Advocates frequently argue that such acts violate constitutional guarantees of equal protection or invade a constitutional right to privacy. However such arguments are often defeated by counter arguments presented with religious, moral and even emotional fervor.

This article discusses and develops an alternative analytical framework that is perhaps more neutral and less emotional than pleas for equal protection or privacy, and that might be used to critically assess such restrictions. The argument is one based on the historic principles of liberty of contract. Those principles were prevalent during what has become known as the Lochner era, an era named for the infamous case of Lochner v. New York, which was decided in 1905. (Lochner held that a statute regulating working hours of bakers was unconstitutional). The Lochner case and the era named for it was dominated by a simple presumption that people should be allowed the liberty to order their own affairs through contract and that regulatory encroachments on that liberty interest would be evaluated critically. This article argues that it is with just such a presumption that restrictions denying individuals the liberty to pursue and have a family should be evaluated and, most likely, found to be unconstitutional.

I never thought of this issue in this way before, but it is certainly interesting. The premise of liberty of contract is that individuals should be able to freely contract with other consenting people to arrange matters as they see fit. I could definitely see this concept preventing the state from banning certain types of couples from adopting, cohabitating (this would be more of a Pierce v. Society argument than a Lochner argument), and engaging in various types of intercourse- commercial, and otherwise.

Definitely worth a read.

Update: I thought a good alternate title would be, “Liberty of Contract. The Right to Intercourse; Commercial and Otherwise”