Advocates for gay rights anticipate a major victory this
summer when the Supreme Court decides whether states may criminalize sodomy
between members of the same sex. The day after oral arguments in Lawrence
and Garner v. Texas,1
several news reports said a majority of justices seemed ready to strike
down the Texas “homosexual conduct” statute at issue in the case.2
Venturing the same prediction, the New York Times characterized
the oral arguments as “a mismatch of advocates to a degree rarely seen
at the court.”3
The high court rejected a challenge to another state’s sodomy
law as recently as 1986 in Bowers v. Hardwick.4
But the late Justice Byron White’s opinion has never won much respect
among legal scholars, and has rarely been cited by the Court itself.
In the meantime, both society and the Court’s membership have changed.
Even before the arguments in Lawrence, gay rights advocates generally
assumed the Court’s more liberal members would not have risked voting
for cert unless a majority of justices seemed ready to rethink laws about
sex acts between consenting adults.
So the more interesting question in Lawrence may not
be who will win, but rather which legal arguments will prevail. Petitioners
have invoked two bodies of 14th Amendment doctrine: substantive due process
and equal protection. In granting cert, the justices agreed to consider
both arguments, along with the explicit question of whether Bowers
should be overruled.
Thus, Lawrence presents the justices with a range
of options. They could invalidate all remaining sodomy laws -- those
covering heterosexuals as well as homosexuals -- thereby expanding the
right of privacy for all Americans. They could give broad guidance to
lower courts, Congress, and state legislatures on how to think about the
legal status of lesbians and gay men. Or, a tenuous coalition of the
Court’s liberals, plus one or two of its swing justices, could simply
invalidate the anti-gay Texas statute on narrow grounds and leave it at
The Due Process Argument
The 14th Amendment’s due process clause has, of course, been
the basis for the Court’s major privacy decisions, most notably those
involving contraception and abortion. The Bowers court flatly
rejected a substantive due process argument, with Justice White framing
the issue narrowly (and, some believe, pejoratively) as “whether the Federal
Constitution confers a fundamental right upon homosexuals to engage in
only two justices from Bowers’ slim five-member majority -- Chief
Justice William Rehnquist and Justice Sandra Day O’Connor -- remain on
the Court. And of the 24 state sodomy laws still on the books in 1986,
11 have since been repealed or judicially invalidated. The Texas statute,
along with those in Kansas, Missouri, and Oklahoma, applies only to homosexuals;
the other nine state sodomy laws, including Michigan’s,6
ostensibly cover everyone.
So it’s conceivable that a new majority will reconsider
the substantive due process arguments and repudiate Bowers. Such
a decision presumably would define the relevant Constitutional liberty
interest at a higher level of abstraction than did Justice White -- not
just homosexual sodomy, but all citizens’ privacy of intimate association.
If so, it would doom all sodomy laws, and would be seen as a significant
milestone not just for gay rights but for the individual liberties of
The Equal Protection Argument
Texas defends its current sodomy
law on the basis of "public morality" and "promoting family
values." But the "homosexual conduct" statute was passed
in 1973 at the same time the state was repealing its laws against heterosexual
sodomy, fornication, and adultery. This history raises suspicion about
whether the current sodomy law serves a legitimate governmental purpose,
or is simply a legislative expression of dislike for homosexuals.
Under these circumstances,
arresting a man because his sexual orientation leads him to engage in
a certain form of conduct with another man rather than with a woman seems
an example of government singling out certain persons for unfavorable
treatment -- a classic example of what the equal protection clause is
supposed to prevent. Thus, subjecting the Texas homosexual conduct law
to equal protection inquiry -- what purpose does it serve, and why does
it draw legal lines where it does? -- goes beyond the matter of sexual
privacy to put the legal status of lesbians and gay men squarely at issue.
The Court’s precedents have, of course, calibrated equal
protection doctrine to protect groups with histories of discrimination.
Judges give “strict scrutiny” to laws that discriminate on the basis of
race or ethnicity; they give “intermediate scrutiny” to laws that discriminate
on the basis of gender or against non-marital children. For everyone
else, though, including sexual minorities, the government need only prove
it has a “rational basis” for treating certain groups differently from
others. And as every first-year law student learns, “rational basis”
scrutiny is not, in practice, much of a legal weapon.
Parallels with Romer v Evans
In the 1996 case of Romer v. Evans,7
the rational-basis test was sufficient to invalidate a Colorado state
constitutional provision, “Amendment 2,” approved by the state’s voters
in 1992. Amendment 2 would have barred Colorado legislators from ever
enacting any statute to protect gays against private discrimination (e.g.,
in employment, housing, or public accommodations) and would have invalidated
several existing municipal gay-rights laws. The Court said that erecting
such extraordinary legal barriers against one group served no rational
governmental purpose, and only provided evidence of state-sponsored “animus.”8
While gay rights advocates regard Romer as an important
victory, some legal scholars found the reasoning in Justice Anthony Kennedy’s
opinion fuzzy and evasive.9
At times, Justice Kennedy seemed to be applying something tougher than
rational-basis review, albeit without saying so.10
But unlike the Court’s landmark decisions on race and gender, Romer
fashioned no enduring legal framework. Indeed, seemingly so inert is
Romer as a precedent that a federal appeals court all but brushed
it aside a year later when it upheld an anti-gay Cincinnati city charter
amendment similar to Colorado’s Amendment 2.11
The Supreme Court’s membership hasn’t changed since 1996,
and Justice Kennedy is seen as a key vote in Lawrence. So a plausible
outcome would be for the Court simply to announce it is applying another
rational-basis test and throw out the Texas law because it impermissibly
burdens homosexuals, but leave other sodomy laws alone if they ostensibly
Such a ruling would be a gay-rights victory, but a limited
one. It would repudiate Bowers’ explicitly anti-gay legacy, but
leave states generally free to snoop in the bedrooms of consenting adults.
Gays would continue to be disproportionately impacted, since most same-sex
sexual activity, even within the context of the most monogamous and committed
relationship, is, by definition, sodomy. Sodomy laws of general application
could still be invoked as a pretext for denying gays equal treatment in
areas like employment, housing, and adoption rights (the argument being
that it seems anomalous to protect a group against discrimination when
the conduct that defines that group may be criminalized). Nor would a
narrow equal protection ruling do much to change the reality that sodomy
laws are disproportionately enforced against homosexuals.
The case for expanding equal protection
Public, political, and legal attitudes toward gays and lesbians
have evolved since Bowers. At the same time, it seems increasingly
obvious that homosexuals, at least in most parts of the country, are the
kind of “discrete and insular minority,” as Justice Harlan Fiske Stone
famously wrote, who cannot fully rely on the political process to safeguard
their rights, and whose equal protection claims may therefore “call for
a correspondingly more searching judicial inquiry.”12
The Supreme Court could take notice of these realities by using Lawrence
to announce that laws targeting people based on sexual orientation will
get heightened scrutiny, perhaps the same level, i.e., “intermediate,”
applied to gender.
The point of heightened scrutiny is to be certain a law’s
underlying purpose is not merely to codify outdated stereotypes and prejudice
against an historically disliked or disadvantaged group. It confers no
special privilege. It simply forces government to prove that a law is
necessary, well-considered, and carefully tailored to achieve an appropriate
objective. Giving sexual orientation the same level of judicial scrutiny
as gender would be a modest innovation. After all, there are natural
parallels between the two: in Texas, two men engaging in certain behavior
results in a crime; change one of the participants to a woman and, even
though the behavior stays the same, the crime disappears. Heightened
scrutiny also would be appropriate given the increasing evidence -- and
the personal testimony of most gay men and lesbians -- that sexual orientation
is an innate and immutable characteristic.
The problem with this argument is that virtually no one believes
the Court is ready for it. When Justice O’Connor asked Paul Smith, counsel
for the two gay petitioners in Lawrence, whether heightened scrutiny
would be necessary to invalidate the Texas statute, he replied that it
would not be. Smith appropriately recognized it was in his clients’ interest
to make his legal objectives seem as modest as possible.
Moreover, the justices surely recognize that writing a new
chapter in equal protection doctrine about gays would work a minor legal
revolution -- and perhaps ignite a political one. Giving lower courts
a stronger standard of review would, for example, make it more difficult
for state legislatures to interfere with gays’ adoption or domestic partnership
arrangements, as social conservatives frequently lobby them to do. More
significantly, states might be forced to prove that denying marriage rights
to same-sex couples serves some important government purpose, rather than
merely perpetuating the way things have always been -- the same inquiry
that proved fatal to most laws that once privileged men over women. Even
the reasoning that keeps gays out of the military (those bunks are so
close together!) might be shaken. Substantive due process aside, heightened
scrutiny could undermine even facially neutral sodomy laws if courts found
that their enforcement and continued justification are colored by anti-gay
prejudice. Thus, for all the reasons that a bold equal protection analysis
would instantly make Lawrence the Court’s most important sexual
orientation decision ever, that outcome is also unlikely.
In summary, then, look for the
Court in Lawrence either to apply a cautious, limited equal protection
analysis, or, more venturesomely, to overrule Bowers on the relatively
safe grounds (since most Americans endorse the idea of sexual privacy)
of substantive due process. The decision's long-run value to gay and
lesbian advocates may be told by the number of justices who join it, the
strength and clarity of its reasoning, and any memorable turns of phrase
that encapsulate the Court's current thinking about the bounds of privacy,
liberty, and equality.
141 S.W.3d 349
(Tex. App. Houston 14th Dist. 2001), cert. granted 123 S. Ct.
661 (2002) (No. 02-102).
e.g., Tony Mauro, Supreme Court Hears Lively Debate Over
Sodomy Law (March 27, 2003), available at http://www.law.com/jsp/newswire_article.jsp?id=1048518194496.
Greenhouse, Court Appears Ready to Reverse a Sodomy Law, N.Y.
Times, March 27, 2003, at A18.
at 190. Although the Georgia law at issue pertained to both heterosexual
and homosexual sodomy, the Bowers court considered only the law’s
application to homosexuals.
6 “Any person who shall commit the abominable and detestable
crime against nature either with mankind or with any animal shall be guilty
of a felony, punishable by imprisonment in the state prison not more than
15 years, or if such person was at the time of the said offense a sexually
delinquent person, may be punishable by imprisonment in the state prison
for an indeterminate term, the minimum of which shall be 1 day and the
maximum of which shall be life.” M.C.L. 750.158 (West 2003).
e.g., Lynn A. Baker, The Missing Pages of the Majority
Opinion in Romer v. Evans, 68 U. Colo. L. Rev. 387 (1997).
Micah R. Onixt, Note, Romer v. Evans: A Positive Portent
for the Future, 28 Loyola U. Chi. L.J. 593 (1997).
11 Equality Foundation of Greater Cincinnati, Inc. v. City
of Cincinnati, 128 F.3d 289
(6th Cir. 1997), cert. denied, 525 U.S. 943 (1998).
12 United States v. Carolene Products Co., 304 U.S. 144, 153 n. 4 (1938).