Kevin Wayne Anderson v. Mitch Morrow, Superintendent, Oregon State Correctional Institution

Weighty state and personal liberty interests are placed at issue by an extremely important question raised at oral argument in this case: does the Supreme Court’s recent decision in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), which created a substantive due process right to private consensual sex, have any bearing on the precision with which the government must act when criminalizing an otherwise consensual sexual act on the ground that the sex partner is too retarded to consent to sexual contact? Although the panel reaches the issue, procedural obstacles and…