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 Bowers v. Hardwick (1986) gay rights, one decade apart, have left a lot Romer v. Evans (1996) of people wondering just where the law now stands with respect to the right to engage in Boy Scouts of America v. Dale homosexual conduct. (2000) Lawrence v Texas (2003) The Court first considered the matter in the 1986 case of Bowers v Hardwick, a Map 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 Questions prevent the criminalization of homosexual conduct between consenting adults. One of 1. Was the Court right in Bowers to view the the five members of the majority, Justice case as one for an as applied review? Powell, later described his vote in the case 2. Would the Court have recognized a right of a as a mistake. (Interestingly, Powell's married couple to engage in sodomy? concurring opinion suggests that were 3. Given the nature of the act in question, the Georgia to have imprisoned Hardwick for enforcement rate of laws prohibiting sodomy his conduct, that might be cruel and will be very low. Does that mean Bowers has unusual punishment.) In 1999, the Georgia gotten more attention than it deserves? Why Supreme Court struck down the statute firstor why not? challenged in Bowers as a violation of the 4. If the Constitution does protect privacy, Georgia Constitution. shouldn't it protect--if anything--consensual sex in a private home, raising as it does both In 1996, the Supreme Court again issues of decisional and spatial privacy? considered gay rights issues in Romer v 5. The Court in Bowers seemed very Evans, a challenge to a provision in the concerned about the slippery slope. Could the Colorado Constitution (adopted by a 54% to Court protect homosexual sodomy between 46% vote) that prohibited the state or its consenting adults without also protecting subdivisions from adopting any laws that polygamy, adultery, incest, or bestiality? What gave preferred or protected status to about sodomy in a public restroom? How might homosexuals. (The provision, Amendment lines be drawn? 2, effectively repealed anti-discrimination 6. What is the state interest in preventing laws in Boulder, Aspen, and Denver.) By a sodomy? How strong do you think it is? Does 6 to 3 vote, the Court found the Colorado concern about sexually transmitted disease provision to lack a rational basis, and have a place in the Court's analysis? therefore to violate the equal protection 7. Should homosexuals be treated as a rights of homosexuals. Justice Kennedy's suspect or quasi-suspect class for purposes of opinion concluded Amendment 2 was "born equal protection analysis? of animosity" toward gays. Justice Scalia, 8. Is "Don't Ask, Don't Tell" constitutional? in his dissent, accused the Court of "taking 9. In Romer, is it reasonable to interpret sides in the culture wars." After Romer, Amendment 2 as leaving no recourse against a speculation about the future of Bowers police department that adopted a policy of not became widespread, with people such as investigating incidents of gay-bashing? Laurence Tribe predicting that Bowers "is 10. Does the interest in protecting landlords not long for this world." with fundamentalist beliefs, who might find it religiously objectionable to rent to Boy Scouts of America v Dale is analyzed homosexuals, provide a rational basis for on the "Right Not to Associate Page." The Amendment 2? Why or why not? basis for the Court's decision that the Boys 11. Does Lawrence suggest that laws Scouts have a right to exclude gays was the prohibiting homosexual marriage are First Amendment's implied recognition of unconstitutional? What legitimate interest does the right of an expressive organization to the state have, if any, in prohibiting two exlude members who might undermine the persons of the same sex from entering into a group's goals or expressive purposes. marriage relationship? 12. Justice Scalia strongly criticized the The Supreme Court in 2003 considered a majority's reliance, in Lawrence, on European challenge to a Texas law that criminalized decisions affording legal protection to homosexual sodomy, but not heterosexual homosexuals engaging in private sexual sodomy. The case, Lawrence v Texas, conduct. Do what extend to you see decisions raised both substantive due process and and trends in other parts of the world as being equal protection issues. Voting 5 to 4, the relevant to interpretation of our Constitution? 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) Related Links 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 Family Research Council (conservative)