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.
In 1996, the Supreme Court again considered gay rights issues in Romer v Evans, a challenge to a provision in the Colorado Constitution (adopted by a 54% to 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 (The provision, Amendment 2, effectively repealed anti-discrimination laws in Boulder, Aspen, and Denver.)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."
Boy Scouts of America v Dale is analyzed on the "Right Not to Associate Page." The basis for the Court's decision that the Boys Scouts have a right to exclude gays was the First Amendment's implied recognition of the right of an expressive organization to exlude members who might undermine the group's goals or expressive purposes.
The Supreme Court in 2003 considered a challenge to a Texas law that criminalized homosexual sodomy, but not heterosexual sodomy. The case, Lawrence v Texas, raised both substantive due process and 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.)
Bowers v. Hardwick (1986)
Romer v. Evans (1996)
Boy Scouts of America v. Dale (2000)
Lawrence v Texas (2003)
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?
5. The Court in Bowers seemed very concerned about the slippery slope. Could the Court protect homosexual sodomy between 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 Amendment 2? Why or why not?
11. Does Lawrence suggest that laws prohibiting homosexual marriage are unconstitutional? What legitimate interest does the state have, if any, in prohibiting two persons of the same sex from entering into a marriage relationship?
12. Justice Scalia strongly criticized the majority's reliance, in Lawrence, on European decisions affording legal protection to homosexuals engaging in private sexual conduct. Do what extend to you see decisions and trends in other parts of the world as being relevant to interpretation of our Constitution?
Tyron Garner (left) and John Lawrence (center) were arrested when having sex in Lawrence's Houston apartment. They are pictured with their lawyer in 1998. (AP photo).