The Court Takes on Gay Rights

Vincent J. Samar

Expectations are running high in the gay community as the United States Supreme Court will shortly hand down a decision in Lawrence v. Texas, a case that has the potential of reversing the infamous Bowers v. Hardwick decision from 1986. That case, which upheld as constitutional a Georgia statute that made same-sex sodomy” a crime, has been used over and over to justify discrimination. Since certain conduct engaged in by sexually active gays and lesbians can be criminalized, states and the federal government have at different times claimed a right to deny the benefits of public employment (both military and non-military) and recognition of relationships (like adoption and marriage) to persons with a same-sex orientation. 

In Lawrence, we have an almost analogous fact pattern to the Bowers case. This time it was Harris County, Texas, sheriff’s officers who entered the home of John Lawrence on the evening of September 17, 1998, and found Lawrence and Tyron Garner having anal sex; in Bowers, it was oral sex. The officers were responding to a false report of a weapons disturbance.” Nevertheless, because of what the officers witnessed, they arrested the men, jailed them overnight and charged each with violating the Texas Homosexual Conduct Law.” That statute makes it a crime to have deviate sexual intercourse,” namely, anal and oral sex with a member of the same sex. (Interestingly, it does not criminalize the same behavior if performed by an opposite sex couple.)

Three questions are at stake in the Supreme Court’s agreement to review the decision of the Texas Court of Appeals, which had affirmed the lower court’s conviction of the two men. First, did the criminal convictions under the Texas statute violate the 14th Amendment right to equal protection of the law? Second, did the convictions for adult consensual intimacy in the home violate vital interests of liberty and privacy under the 14th Amendment due process clause? Finally, should Bowers v. Hardwick be overruled? These issues are important not only because they provide two avenues of approach to the same basic problem — the constitutional right of adults to have consensual sex with someone of the same sex — but also because they have the potential to open doors in areas of employment, parenting and marriage law.

With regard to the first point, if the court finds the Texas statute violates a fundamental right to privacy, then it will have a basis, on that alone, to say that there has also been an equal-protection violation. This is because one of the formulae for defining an equal-protection violation is that a fundamental right has been denied to some citizens without the state showing a compelling reason for that distinction. 

Alternatively, or in conjunction with finding a due-process violation, the court can apply any of three standards to prevent discrimination. It could find that same-sex couples as a group constitute a suspect class that requires laws operating against them to be strictly construed. More likely, the court could find that gays and lesbians warrant an intermediate level of protection, on the grounds that much of the discrimination directed against them is founded on gender. Least likely, but not impossible, the justices could say that so long as the discriminatory effect has a rational basis tied to a legitimate governmental concern — like the protection of public mores — the discrimination is O.K. This is less likely because if the Supreme Court were going to take that route, given its prior decision in Bowers v. Hardwick, it need not have agreed to hear the case. This raises two questions: What impact will these different scenarios have on future cases, and how probable is each of them?

A probable lineup of how the justices will vote is that Stevens, Ginsburg, Souter and Breyer will be on the side of John Lawrence, while Rehnquist, Thomas and Scalia will be on the side of Texas. This will leave Kennedy and O’Connor as the swing votes. Kennedy, however, wrote the majority opinion in Romer v. Evans, which held unconstitutional, under the federal 14th Amendment equal protection clause, Amendment 2 to the Colorado state constitution, which prohibited the state legislature or any municipality from recognizing protected status for gays, lesbians or bisexual persons. So, he likely will be a favorable vote in this case. O’Connor’s vote is less clear, because at the oral argument she questioned whether a finding for Lawrence would necessarily impact other areas of the law.

What impact these different scenarios may have on future non-sodomy cases will all depend on how broadly the justices articulate the right involved. If they limit the right to criminal sodomy statutes, then, while the result will be friendly, it will be less an indicator of future decisions. Alternatively, if the right is more broadly described, the impact on other areas of the law could be substantial. If these assumptions on the vote are correct, then the benefit of a narrower result is that it will carry a 6 – 3 majority. On the other hand, if a broader opinion is written, then (assuming O’Connor joins in the decision with a narrowly tailored concurring opinion) that decision will be strong but the reasoning weak. That suggests the need for cautious optimism, as President Bush may soon have the opportunity to change the makeup of the court with new appointments. 

A Texas law makes it a crime for people to have “deviate sexual intercourse.”
Vincent J. Samar, a Chicago-area adjunct professor of law and philosophy, is the author of The Right to Privacy: Gays, Lesbians and the Constitution.
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