Sexual Preference and the Constitution

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Since the 1960s both legislation and judicial decisions have moved toward decriminalization of homosexual conduct and toward increased acceptance of homosexuals as parents, professionals, and public employees. A number of legal restrictions remain, however, mostly concerning employment and other material benefits. The Supreme Court has not fully considered the constitutional issues raised by these restrictions. In Doe v. Commonwealth's Attorney (1976) the Court summarily affirmed, 6–3 and without opinion, a federal district court's dismissal of a constitutional challenge to Virginia's sodomy law, brought by two adult males who lived in a stable homosexual relationship. The absence of any serious threat of prosecution suggests that the Court's decision may have rested on a ripeness ground. In any case, Doe surely is not the Court's last word on the subject—although it provides an object lesson for anyone who would ignore the influence of conventional morality on the development of coherent constitutional principle.

Doe had been argued on the theory of a right of privacy, by analogy to the Court's decisions on birth control and abortion. But "privacy," in its ordinary usage, fails to capture the essence of the constitutional claim. A middle-class homosexual couple need fear no prosecution if they keep their relationship private. It is precisely the public expression of homosexuality that produces sanctions; the interest at stake is in some sense the opposite of privacy, more akin to a first amendment freedom of expression. Similarly, the issue of homosexual marriage, which has been addressed by some commentators as an issue of sex discrimination, seems better approached as a problem in symbolic expression of a homosexual couple's identity.

Recognition of homosexual relationships within a freedom of intimate association would place on government the burden of justifying its interference with those relationships. If a state had to prove that homosexuality alone disqualified a person from child custody or employment as a school teacher, its efforts to do so would demonstrate that the operative factor in the law's disqualifications was not risk of harm but stigma. Commentators have suggested that homosexuality be added to the list of suspect classifications calling for strict scrutiny under the equal protection clause, and there is force to the argument. Whether the problem be seen as one of equality or as an aspect of substantive due process, most laws regulating homosexual conduct seem unlikely to survive serious constitutional scrutiny. What remains in question is the willingness of a majority of Justices for the Supreme Court to engage in that scrutiny.

Kenneth L. Karst


Project 1966 The Consenting Adult Homosexual and the Law: Empirical Study of Enforcement and Administration in Los Angeles County. UCLA Law Review 13:643–832.

Rivera, Rhonda R. 1979 Our Straight-Laced Judges: The Legal Position of Homosexual Persons in the United States. Hastings Law Journal 30:799–955.

Symposium 1985 The Legal System and Homosexuality—Approbation, Accommodation, or Reprobation? University of Dayton Law Review 10:445–813.