Homosexuality

Homosexuality The Supreme Court has protected some aspects of sexual autonomy within the context of a constitutional right of privacy. It has recognized an individual's right to use contraceptives in Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972), and upheld a woman's right to decide whether or not to terminate her pregnancy in Roe v. Wade (1973). Initially, however, the Court refused to construe the right of privacy to protect consensual homosexual activity by adults in their own homes. The 5‐to‐4 majority in Bowers v. Hardwick (1986) upheld a Georgia law that criminalized both homosexual and heterosexual sodomy. At that time, twenty‐four states plus the District of Columbia outlawed sodomy. Writing for the majority, Justice Byron White maintained that the right to privacy did not confer a general right to sexual autonomy but was limited to questions of marriage, family, and procreation, concluding that homosexual conduct bore no connection to any of those. In a strong dissent, Justice Harry Blackmun insisted that the majority had focused on the wrong question. The case was not about a “fundamental right to engage in homosexual sodomy,” as the majority claimed, but “about ‘the most comprehensive of rights and the right most valued by civilized men,’ namely, ‘the right to be let alone’ Olmstead v. United States (1928).”

In the 1990s, the Court accorded a degree of protection to homosexuals by way of the Equal Protection Clause of the Fourteenth Amendment. The Court did not recognize homosexuality as a suspect classification. Instead, it used a rational basis test in Romer v. Evans (1996) to strike down Amendment 2 to Colorado's constitution. Enacted by voter initiative as a response to municipal ordinances banning discrimination based on sexual orientation in housing, employment, education, public accommodations, health and welfare services, and other transactions and activities, Amendment 2 precluded any action by any branch of state government to protect the status of individuals based on their “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.” Writing for a 6‐to‐3 majority in Romer, Justice Anthony Kennedy said that Amendment 2 “seems inexplicable by anything but animus toward the class it affects” and concluded that it “lacks a rational relationship to legitimate state interests” (517 U.S. 620 at 632).

However, in *Boy Scouts of America v. Dale (2000), a 5–to–4 majority overturned a state supreme court ruling that the Boy Scouts, a private, not‐for‐profit organization, had violated a New Jersey public accommodations law (banning discrimination on the basis of several traits including “sexual orientation”) when it revoked the adult membership of James Dale, an assistant scoutmaster, solely because of his avowed homosexuality (no conduct was involved). Chief Justice William Rehnquist ruled that forced reinstatement of Dale would violate the organization's First Amendment right of expressive association. Five years earlier, a unanimous Court ruled in *Hurley v. Irish‐American GLB Group (1995) that using a Massachusetts public accommodations law to require the organizers of Boston's St. Patrick's Day parade to include an organization of Irish‐American gay, lesbian, and bisexual individuals would violate the organizers' First Amendment right to control the message that the parade would impart.

In Lawrence v. Texas (2003), the Court overruled Bowers v. Hardwick, and expressly recognized that the right of privacy protects private consensual homosexual conduct among adults. The Texas law at issue (unlike the Georgia law in Bowers) criminalized homosexual sodomy but not heterosexual sodomy. Thus, the Court could have sustained Bowers and simply ruled that the Texas law violated equal protection by criminalizing sodomy only among same‐sex partners. This is what Justice Sandra Day O'Connor recommended in her concurring opinion. In his opinion for the Court, Justice Kennedy admitted that the equal protection argument was a “tenable” one, but insisted that the Court go further and reconsider the Court's holding in Bowers. Lawrence, he wrote, “should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution” (539 U.S. 558 at 564). He, along with four other members of the majority, concluded that they were: “The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” In so doing, a five‐person majority explicitly overturned Bowers, saying that it “was not correct when it was decided, and it is not correct today” (539 U.S. 558 at 578). O'Connor's concurrence added a sixth vote for overturning the Texas statute.

Left unclear by the majority's decision in Lawrence was how the Court might rule on issues such as gay marriage and the ban on gays in the military (which, despite the 1993 “Don't Ask, Don't Tell” law, remained in effect). Every earlier constitutional claim against the latter had failed in federal court, though the Supreme Court itself had never ruled on the issue. Even before Lawrence, many legal observers believed that Congress's 1996 Defense of Marriage Act, which allowed states to disregard same‐sex marriages contracted in other states, violated the Full Faith and Credit Clause of the Constitution.

The issue of gay marriage came to the fore in 2003 when the Supreme Judicial Court of Massachusetts ruled 4‐to‐3 in Goodridge v. Department of Public Health (440 Mass. 309) that “barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts constitution” p. 344). Although the U.S. Supreme Court refused in November 2004 to hear a challenge to a subsequent Massachusetts law allowing same‐sex couples to wed, it is likely that this issue will come before the Court again—especially as same‐sex couples who marry in a state where it is legal move to other states and demand that their marriages be recognized there.

See also Discriminatory Intent.

Bibliography

Jean L. Cohen , Regulating Intimacy: A New Legal (2002).
Andrew Koppelman , The Gay Rights Question in Contemporary American Law (2002).
Arthur S. Leonard, ed., Homosexuality And The Constitution (1997).

John Anthony Maltese