Lawrence and Garner v Texas

            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 that.

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 sodomy.”⁵  But 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 all Americans.

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 burden everybody. 

            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 doctrine

            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. 

Conclusion

            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.

      Footnotes