The author begins by considering the appropriate degree of deference the U.S. Supreme Court should use when invalidating a piece of legislation, and determines that they should use a “not unreasonable” standard in their review. He then reviews the key components of the 14th Amendment (due process, equal protection, and privileges and immunities), and concludes that a law will run afoul of the 14th Amendment if it is based on a “demeaning view” of a group of people. While he concludes that most anti-same-sex marriage laws are based on a demeaning view of gay men and lesbians, and thus technically unconstitutional, he feels that the Supreme Court should perhaps proceed cautiously in invalidating those laws in deference to the legislative process, and because invalidation could provoke a backlash that prompts an amendment to the Constitution.

Strasser intends this article as a corrective to those who interpret Lawrence v. Texas [539 U.S. 558 (2003)] as a simple incorporation of John Stuart Mill’s “harm principle.” ON LIBERTY’s harm principle states that “the only conduct for which an individual is appropriately subject to sanction by either the state or society is conduct which is ‘other-affecting;’ that which only affects himself is not appropriately subject to external punishment.” Strasser argues that viewing Lawrence as embodying this principle follows from both a “watered-down” understanding of the harm principle itself, and a narrow reading of Lawrence to justify the claim that the decision “incorporates this modified version.”
“It is inappropriate to characterize Lawrence as a straightforward incorporation of the harm principle both because in some respects it does more than the harm principle [by assigning positive value to GLBT relationships], and because in other respects it does less than the harm principle [by protecting fewer liberties than the harm principle requires, such as prostitution].”
The erroneous reduction of Lawrence to the harm principle reinforces but does not wholly account for subsequent decisions (Lofton v. Secretary of Florida Department of Children and Family Services [358 F.3d 804 (11th Cir. 2004)], L.A.M. v. B.M. [906 So.2d 942 (Ala. 2004)], Kansas v. Limon[83 P.3d 229 (Kan. Ct. App. 2004)]) that have disadvantaged GLBT persons “not because of a misreading of Lawrence as simply an incorporation of Mill’s harm principle into 14th Amendment jurisprudence, but because the courts have been making more serious and obvious mistakes in their interpretation of local and constitutional law.”