Here Comes the Judge

In the 1960’s, the majority of states placed restrictions or outright prohibitions on abortion. But a string of Supreme Court decisions, sometimes leading and sometimes trailing public opinion, reshaped the national consensus on these issues. From Griswold v Connecticut (regarding contraception in 1965) to Loving v Virginia (1967 ruling overturning state laws banning racial intermarriage) and finally Roe v Wade (1973 decision protecting abortion rights), the Court elucidated a right to privacy and built on the due process and equal protection clauses of the 14th Amendment, striking down state laws abridging the most personal and basic of freedoms.

For homosexual Americans, there has been substantial, if uneven, progress in the past generation, as the federal courts have addressed some of the worst abuses of the states. A series of decisions has expanded Americans’ rights to marry and engage in private, consensual sexual activity. These have eroded conservatives’ claims to enshrine current or majority morality in the law. They have also narrowed the scope of acceptable or compelling state interest in defining, protecting or preserving the family.

In 1967, Loving v Virginia overturned a statute barring interracial marriage in the commonwealth of Virginia. Writing for the majority, Chief Justice Earl Warren held that Virginia's statutory scheme to prevent marriages between persons solely on the basis of racial classifications violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment:

There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

Warren’s opinion in Loving also cited the 1942 Skinner v Oklahoma decision barring the state of Oklahoma from performing forced sterilization procedures upon repeat criminal offenders:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival…To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

Neither these 14th Amendment protections nor the right to privacy emanating from “penumbras” of the 9th Amendment described in Griswold were sufficient, however, to protect homosexuals from prosecution under state sodomy laws, even as late as 1986. Justice Byron White upheld the constitutionality of a Georgia statute against sodomy in Bowers v Hardwick. A 5-4 majority reversed the 11th Circuit Court’s ruling and explicitly stated that neither the right to privacy described in Griswold (and subsequent cases) nor the due process clauses of the 5th and 14th Amendments conferred a right to engage in homosexual activity within one’s own home. White’s opinion also strongly reinforced the need to defer to long-held traditions of morality in the law:

Proscriptions against that conduct have ancient roots…The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.

Two decisions in the past decade, however, have effectively reversed Bowers and could impact the gay marriage debate, especially as cases in Massachusetts and California wind their way through the system. First, the 1996 decision in Romer v Evans invalidated Colorado’s constitutional Amendment 2, a measure passed by referendum which precluded “all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their "homosexual, lesbian or bisexual orientation, conduct, practices or relationships.”

Justice Kennedy’s 7-2 majority opinion recalled Justice Harlan’s dissent in Plessy that the Constitution “neither knows nor tolerates classes among citizens.” (Justice Scalia, citing Bowers, of course dissented.) Citing the Equal Protection clause of the 14th Amendment, Kennedy struck down the Colorado provision and rejected the “special rights’ language of its proponents:

The State's principal argument that Amendment 2 puts gays and lesbians in the same position as all other persons by denying them special rights is rejected as implausible…Even if, as the State contends, homosexuals can find protection in laws and policies of general application, Amendment 2 goes well beyond merely depriving them of special rights. It imposes a broad disability upon those persons alone, forbidding them, but no others, to seek specific legal protection from injuries caused by discrimination in a wide range of public and private transactions.

Kennedy, also citing the Equal Protection clause, similarly rejected the notion that the State had a compelling interest or legitimate legislative end in enacting Amendment 2:

In order to reconcile the Fourteenth Amendment's promise that no person shall be denied equal protection with the practical reality that most legislation classifies for one purpose or another, the Court has stated that it will uphold a law that neither burdens a fundamental right nor targets a suspect class so long as the legislative classification bears a rational relation to some independent and legitimate legislative end…Amendment 2 fails, indeed defies, even this conventional inquiry…Amendment 2 cannot be said to be directed to an identifiable legitimate purpose or discrete objective. It is a status-based classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.

In the 2003 Lawrence v Texas case, the Court in a 6-3 decision invalidated the prosecution of two men under a Texas sodomy statute and reversed Bowers altogether. Again writing for the majority, Justice Kennedy overturned Bowers on both privacy and due process grounds:

Bowers' rationale does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens concluded that (1) the fact a State's governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, and (2) individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of "liberty" protected by due process. That analysis should have controlled Bowers, and it controls here. Bowers was not correct when it was decided, is not correct today, and is hereby overruled.

Importantly, Lawrence was decided based on privacy and due process grounds, rather than narrow equal protection considerations. As a result, the majority’s broad rationale would sweep away sodomy laws in all 13 states still having them, regardless of their focus on consenting homosexual versus heterosexual adults.

1. States' Blights:  Introduction
2. Here Comes the Judge
3. Public Acts, Compelling State Interest, and the Santorum "Man on Dog" Test
4. What is to be Done?  A Measured Approach for 2004