Gay Rights And The Constitution

The Gay Rights Controversy The issue: Does the Constitution protect homosexual conduct? What limitations does the Constitution place on ability of states to treat people differently because of their sexual orientation? Introduction

Cases

Two Supreme Court decisions involving gay rights, one decade apart, have left a lot of people wondering just where the law now stands with respect to the right to engage in homosexual conduct.

Bowers v. Hardwick (1986) Romer v. Evans (1996) Boy Scouts of America v. Dale (2000) Lawrence v Texas (2003)

The Court first considered the matter in the 1986 case of Bowers v Hardwick, a challenge to a Georgia law authorizing criminal penalties for persons found guilty of sodomy. Although the Georgia law applied both to heterosexual and homosexual sodomy, the Supreme Court chose to consider only the constitutionality of applying the law to homosexual sodomy. (Michael Hardwick, who sought to enjoin enforcement of the Georgia law, had been charged with sodomy after a police officer discovered him in bed with another man. Charges were later dropped.) In Bowers, the Court ruled 5 to 4 that the Due Process Clause "right of privacy" recognized in cases such Griswold and Roe does not prevent the criminalization of homosexual conduct between consenting adults. One of the five members of the majority, Justice Powell, later described his vote in the case as a mistake. (Interestingly, Powell's concurring opinion suggests that were Georgia to have imprisoned Hardwick for his conduct, that might be cruel and unusual punishment.) In 1999, the Georgia Supreme Court struck down the statute first challenged in Bowers as a violation of the Georgia Constitution.

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Questions

1. Was the Court right in Bowers to view the case as one for an as applied review? 2. Would the Court have recognized a right of a married couple to engage in sodomy? 3. Given the nature of the act in question, the enforcement rate of laws prohibiting sodomy will be very low. Does that mean Bowers has gotten more attention than it deserves? Why or why not? 4. If the Constitution does protect privacy, shouldn't it protect--if anything--consensual sex in a private home, raising as it does both issues of decisional and spatial privacy? In 1996, the Supreme Court again 5. The Court in Bowers seemed very considered gay rights issues in Romer v concerned about the slippery slope. Could the Evans, a challenge to a provision in the Colorado Constitution (adopted by a 54% to Court protect homosexual sodomy between

46% vote) that prohibited the state or its subdivisions from adopting any laws that gave preferred or protected status to homosexuals. (The provision, Amendment 2, effectively repealed anti-discrimination laws in Boulder, Aspen, and Denver.) By a 6 to 3 vote, the Court found the Colorado provision to lack a rational basis, and therefore to violate the equal protection rights of homosexuals. Justice Kennedy's opinion concluded Amendment 2 was "born of animosity" toward gays. Justice Scalia, in his dissent, accused the Court of "taking sides in the culture wars." After Romer, speculation about the future of Bowers became widespread, with people such as Laurence Tribe predicting that Bowers "is not long for this world."

consenting adults without also protecting polygamy, adultery, incest, or bestiality? What about sodomy in a public restroom? How might lines be drawn? 6. What is the state interest in preventing sodomy? How strong do you think it is? Does concern about sexually transmitted disease have a place in the Court's analysis? 7. Should homosexuals be treated as a suspect or quasi-suspect class for purposes of equal protection analysis? 8. Is "Don't Ask, Don't Tell" constitutional? 9. In Romer, is it reasonable to interpret Amendment 2 as leaving no recourse against a police department that adopted a policy of not investigating incidents of gay-bashing? 10. Does the interest in protecting landlords with fundamentalist beliefs, who might find it religiously objectionable to rent to homosexuals, provide a rational basis for Boy Scouts of America v Dale is analyzed Amendment 2? Why or why not? on the "Right Not to Associate Page." The 11. Does Lawrence suggest that laws basis for the Court's decision that the Boys Scouts have a right to exclude gays was the prohibiting homosexual marriage are unconstitutional? What legitimate interest does First Amendment's implied recognition of the state have, if any, in prohibiting two the right of an expressive organization to exlude members who might undermine the persons of the same sex from entering into a marriage relationship? group's goals or expressive purposes. 12. Justice Scalia strongly criticized the majority's reliance, in Lawrence, on European The Supreme Court in 2003 considered a decisions affording legal protection to challenge to a Texas law that criminalized homosexual sodomy, but not heterosexual homosexuals engaging in private sexual conduct. Do what extend to you see decisions sodomy. The case, Lawrence v Texas, and trends in other parts of the world as being raised both substantive due process and relevant to interpretation of our Constitution? equal protection issues. Voting 5 to 4, the . Court overruled its earlier decision in Bowers v Hardwick and found that the state lacked a legitimate interest in regulating the private sexual conduct of consenting adults. Justice O'Connor added a sixth vote to overturn the conviction, but rested her decision solely on the Equal Protection Clause. Predictably, Justice Scalia dissented, accusing the majority of "largely signing on to the so-called homosexual agenda." (For information on the issue of gay marriages, see: Right to Marry.) Tyron Garner (left) and John Lawrence (center) were arrested when having sex in Lawrence's National Journal of Sexual Orientation Law Houston apartment. They are pictured with Sexual Orientation: Science, Education, and their lawyer in 1998. (AP photo). Policy ACLU: Gay and Lesbian Rights

Related Links

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