Essay : Sodomy Laws and their Effect on Gay People
By Philip Chandler
This essay describes the treatment of gay men and lesbians at the hands of our legal system over the course of the past two decades, touching upon various constitutional claims that have been made by activists within our community as part of the ongoing effort to secure full equality under the law. This essay also explores some of the implications of recent Supreme Court and appellate court decisions bearing upon these claims, and outlines what the author perceives to be a positive trend in the development of several areas of constitutional jurisprudence that directly impact our community. The essay will explore the ramifications of decisions relating to due process, equal protection, and First Amendment rights.
In 1986, the US Supreme Court, ruling in the case of Bowers v.
The majority opinion, authored by Justice White, was joined in a concurrence by then-Chief Justice Burger, who wrote one of the most gratuitously vicious opinions ever handed down by a member of the Federal bench. Chief Justice Burger went out of his way to point out that homosexuality was punishable by the death penalty under Roman law, and that it had been condemned by British legal scholars as "the infamous crime against nature." To strike down state "sodomy" statutes on constitutional grounds would have been, in Burger's mind, "to cast aside millennia of moral teaching."
This decision represented a blatant example of the sacrifice of
constitutional principle to political expediency. As legal scholars have
repeatedly pointed out, it is not the responsibility of the US Supreme Court to
reflect on the soundness of Roman law. It is the responsibility of the Court to
adjudicate the constitutionality of statutes implicated in cases brought before
it by examining those statutes in the light of strictures placed on legislative
bodies by the Constitution of the
The tone of Bowers was as important as the result. The Court
made it clear that it held gay men and lesbians in contempt. This tone was not
lost on the lower federal courts, many of which cited Bowers in
contexts utterly unrelated to the narrow holding expressed in this decision. It
should be remembered that the Court's holding in Bowers was
limited to the issue of whether or not the right to privacy previously
developed by the Court in a string of cases dealing with familial and sexual
relationships also protected consensual gay sex acts performed in private.
Nevertheless, lower courts up and down the country interpreted Bowers
as a mandate to create a "gay exception" to the Constitution. The
collateral damage associated with this ruling radiated throughout the lives of
gay Americans. Bowers was used to deprive gay parents of custody
of their own children on the grounds that gay parents were unconvicted
criminals. Bowers was similarly used to deny gay men and lesbians
the right to adopt or to serve as foster parents in several states. Bowers
was used to deny gay men and lesbians the privilege of serving in this nation's
armed forces on an equal footing with heterosexuals. Bowers was
invoked by legislative bodies in (frequently successful) efforts to prevent the
adoption of laws and policies that would protect gay people from discrimination
in employment, housing, credit, and public accommodations. The damage done by Bowers
appeared to have no limits. In one case decided by the US Court of Appeals for
the Sixth Circuit in 1997, the state of
Bowers has been the target of sustained criticism, both within
Nine years after Bowers was handed down, the US Supreme Court
indicated what some constitutional scholars considered to be a softening of its
position relative to the rights of gay and lesbian Americans. Ironically, this
shift in tone occurred in the context of a decision in which the gay plaintiffs
lost their case (Hurley v. Irish-American Gay Group, 515 U.S. 557 (1995)).
The South Boston Allied War Veterans Council was authorized by the City of
Conservatives hailed this decision as a victory for their cause. One
The naked contempt so evident in Bowers was not to be found in
Hurley. Instead of sneering references to "practicing
homosexuals," the court offered a respectful analysis of the
constitutional arguments advanced by the gay, lesbian, and bisexual plaintiffs.
More importantly, the Court held that the statement "I am gay"
constitutes an expressive utterance protected by the First Amendment. The Court
held, in an eminently reasonable opinion, that the First Amendment also
protected the right of the parade organizers not to express a particular
point of view, and that the First Amendment rights of the parade organizers
would be violated were they to be forced to include a gay-positive message in
their parade. In short, the Court expressed surprising sympathy for the message
of the gay plaintiffs, but held that the First Amendment's ban on compelled
speech prohibited the
One year later, the Court handed down an astonishing and powerful ruling in what has become one of the most controversial cases in the Court's equal protection jurisprudence.
By the early 1990s, gay men and lesbians had succeeded in securing limited
protections, in a limited number of jurisdictions, from both public sector and
private sector discrimination in employment, housing, credit, and public
accommodations. These protections usually took the form of state laws and local
ordinances that included sexual orientation as a characteristic that could not
be taken into account when making such decisions as whether to hire or fire
employees, rent apartments to prospective tenants, or serve persons in places
of public accommodation (e.g., restaurants and hotels). Gay men and lesbians
won these protections in the time-honored American tradition of lobbying
legislative bodies and by making the case for such protections at the ballot
box. In short, activists seeking equal rights for gay people employed the
democratic process in an effort to seek passage of legislation that would
secure those rights. As has been pointed out by numerous constitutional
scholars, participation in the democratic process lies at the heart of the
American political experience. It is firmly in the national tradition to vote
on issues of public significance, and the democratic process is considered to
be the mechanism whereby most matters of public policy are ultimately decided,
with the exception of matters implicating certain fundamental rights that exist
independent of the outcome of the electoral process (it is for this reason that
we have a Bill of Rights).
Upon observing that gay men and lesbians were winning partial victories by invoking the democratic process, cultural conservatives decided to change the democratic process itself in such a manner as to permanently exclude gay men and lesbians from equal participation in that process. As the vehicle for this attempt at restructuring the political process, the hard right selected the State of
Dissatisfied with the results of this process, the hard right (spearheaded
by an organization named
Amendment 2 was adopted on
As pointed out by attorneys who attacked the measure, the breadth of this state constitutional amendment was staggering. Gay and lesbian Coloradans, and only gay and lesbian Coloradans, would have been left without any remedy (short of changing the state constitution) in the face of discrimination, without regard to the nature or severity of the discrimination they faced. Coloradans had for all intents and purposes granted themselves an unrestricted license to discriminate against their gay citizens. Immediately following the adoption of the Amendment, activists from rural areas reported incidents of restaurant owners and innkeepers hanging signs from their windows bearing such legends as "No Queers Served Here."
The State of
The State appealed the affirmation of the preliminary injunction by the
Colorado Supreme Court to the US Supreme Court, which denied certiorari. The
case was then tried before the District Court for the City and
The grant of certiorari greatly concerned many gay rights activists who, given the Court's prior ruling in Bowers, were concerned that the Court would use this case to deal a further blow to the efforts of gay Americans to advance their fight for equal treatment under the law.
Yet it soon became apparent that the respectful approach taken by the Court
in Hurley may not have been an aberration. During oral arguments
before the Court on
The decision came down on
By a six to three vote, the Court held that Amendment 2 violated the Equal Protection Clause of the Fourteenth Amendment. The majority opinion was sweeping, broad, and forceful. What surprised legal scholars most was the rationale adopted by the Court in upholding the ruling of the Colorado Supreme Court. Whereas the state court had based its ruling on its holding that the Amendment violated the fundamental right of gay and lesbian citizens to participate equally in the political process, the US Supreme Court based its ruling on its holding that the Amendment was not rationally related to the furtherance of any legitimate state interest. In short, the US Supreme Court held that Amendment 2 could not survive rational basis review. This was surprising, in that adoption of the rational basis standard almost always results in victory for the state. Just three years before the Romer decision came down, the Court had indicated (in Heller v. Doe, 509 U.S. 312 (1993)) that it would be very reluctant to strike down any statute under equal protection considerations unless that statute implicated the exercise of a fundamental right or burdened a "suspect class." In Romer, the Court appeared to backtrack on this decision, making Romer one of a handful of cases in which the Court had invalidated a statute on the grounds of total irrationality.
Gay people have not been deemed a "suspect class" by the US Supreme Court (although several lower Federal courts, as well as several of the Federal courts of appeals, have indicated their willingness to adopt this classification). Furthermore, the Romer court explicitly distanced itself from the political participation theory advanced by the Colorado Supreme Court. Instead, the Court held that Amendment 2 was clearly intended to be a vehicle to effectuate "animus" towards gay men and lesbians. The Court further held that the desire to effectuate animus towards gay men and lesbians could never constitute a legitimate state interest. Hence, Amendment 2 could not be sustained under the rational basis test, which holds that a statute that neither burdens a "suspect class" nor implicates the exercise of a fundamental right will be upheld provided it bears some rational relationship to a legitimate state interest. In arriving at the conclusion that Amendment 2 was intended to effectuate animus towards gay men and lesbians, the Court relied upon the sheer breadth of the Amendment, noting that this breadth was "so discontinuous with the reasons offered for it that the amendment seem[ed] inexplicable by anything but animus toward the class that it affec[ted]."
Equally surprising was the tone of the ruling. Proponents of Amendment 2 had repeatedly claimed that the rights sought by the gay and lesbian community (i.e., protection against discrimination) constituted "special rights." The Court disagreed with this proposition, stating the following:
"We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society."
Coming from a court which had, just ten years earlier, sneered at the constitutional claims of a gay man who had been arrested for having sex in his own bedroom, these words were nothing less than staggering in their implications.
What does this bode for the future of those same-sex "sodomy" statutes that remain on the books? It is important to bear in mind that the Romer court explicitly held that a desire to effectuate animus towards gay men and lesbians could never constitute a legitimate state interest. What are same-sex "sodomy" statutes intended to do? Most legal scholars would argue that such statutes are intended to express a societal disapproval of homosexuality (i.e., to express animus towards gay men and lesbians). In addition, what should be made of the fact that the Romer majority did not make even passing reference to Bowers? Many legal scholars interpret this as a clear signal from the Court that Bowers should no longer be relied upon by the lower courts as good decisional law in cases dealing with the rights of gay people. Thus, many legal scholars believe that the Court may have gone a long way towards silently overruling Bowers.
Associate Justice Antonin Scalia, writing for the dissent, was anything but silent. He launched into a vitriolic diatribe, the first sentence of which, through the choice of words employed, had many people wondering what could possibly have possessed him to allude to the autobiography of a well-known German national, written several decades ago, in which the author described his kampf ("The Court has mistaken a Kulturkampf for a fit of spite...."). Scalia worked himself up into a frenzy, accusing the Court of placing the prestige of that institution behind the proposition that "opposition to homosexuality is as reprehensible as racial or religious bias." In passages eerily reminiscent of writings all too well known to this world, Scalia inveighed against the homosexual "problem" faced by the citizens of Colorado, noting that gay men and lesbians tended "to reside in disproportionate numbers in certain communities," where they possessed "political power much greater than their numbers, both locally and statewide." He expressed outrage at the "enormous influence in American media and politics" enjoyed by gay men and lesbians, and railed against the fact that gay men and lesbians "care about homosexual rights issues much more ardently than the public at large," essentially claiming that the tendency on the part of gay Coloradans to invoke the democratic process more readily than their heterosexual counterparts constituted a distortion of the process itself. One wonders how it could have escaped Scalia's attention that, in a country where people vote their policy preferences into law under a "one man, one vote" system, members of one particular group of citizens can never possess "disproportionate" political power unless members of other groups of citizens choose to abdicate their own power. One also wonders whether Scalia would ever apply a similar analysis to the behavior of fundamentalist Christians, who certainly care about their issues (e.g., forcing mandatory school prayer down the throats of the rest of us, outlawing reproductive choice for women) "much more ardently than the public at large." Perhaps one could be forgiven for harboring some degree of cynicism towards this analysis, given the selectivity of its application and the transparency of its logic.
In short, Scalia argued that power should remain
in the hands of those who already possessed it. He went so far as to rely upon
the Court's holding in an ancient case that has long since been overturned. In
The majority opinion in Romer was
also noteworthy for its classification of gay people in terms of status as
opposed to conduct. Bowers treated gay men and lesbians as a
group defined in terms of sexual conduct alone. Romer,
on the other hand, recognized the existence of homosexual status and was
written with the implicit understanding that gay men and lesbians are defined
in terms of who they are as opposed to what they do.
The authors of Amendment 2 made reference to both status and conduct in an
apparent attempt to thwart any attempt to limit the application of Amendment 2.
While the overbreadth of this classification
certainly did not help its chances of surviving judicial review, it is apparent
from the majority's analysis that the Court saw through the artificiality of
this attempt to define gay men and lesbians in terms of the sum of a number of
sex acts. The majority held that the references to both status and conduct in
the text of Amendment 2 merely reflected an attempt on the part of the
Amendment's authors to ensure that gay men and lesbians would be deprived of
equal protection regardless of how they were identified by the Court. The
majority rejected this attempt, holding that Amendment 2 was "a
status-based enactment divorced from any factual context from which we could
discern a relationship to legitimate state interests; it is a classification of
persons undertaken for its own sake, something the Equal Protection Clause does
not permit." Finally, the majority opined that "Amendment 2 classifies
homosexuals not to further a proper legislative end, but to make them unequal
to everyone else. This
This was the nail in the coffin for adherents to the position that homosexuality
is merely a reflection of behavioral choice. The Supreme Court of the
The status / conduct distinction infuriated Scalia,
who returned again and again to Bowers, bemoaning what he
considered to be the fact that its holding had been greatly damaged, if not
destroyed, by the
Just as the Court's narrow holding in Bowers inflicted incalculable collateral damage to the gay community, the first ripple effects of Romer's much broader holdings are now making themselves felt to the benefit of that community. The following section discusses the growing body of case law that has arisen in the wake of Romer.
In 1996, the US Court of Appeals for the Seventh Circuit -- a scholarly and
conservative court -- revived a lawsuit filed by Jamie Nabozny,
who had been beaten, urinated upon, and mock-raped by other male students at
his high school in
The district court granted summary judgment in favor of the defendants,
dismissing all of Nabozny's claims. Nabozny appealed to the Seventh Circuit, which handed down
its decision on
Although the court did not rely on Romer in reaching its decision, it was apparent that this circuit considered Romer to be a watershed case that would soon result in the demise of Bowers. In reaching this conclusion, the Seventh Circuit may have taken its cue from the Romer court's failure to so much as mention Bowers in the majority opinion. This is consistent with the observation that the Supreme Court very seldom directly overrules its earlier decisions, usually preferring to undermine decisions with which it no longer agrees through a process of neglect combined with the opening of new lines of constitutional analysis.
Nabozny subsequently took his case to trial, where the parties settled before the jury reached a verdict. Nabozny received over nine hundred thousand dollars in damages.
A number of similar cases have since been filed, and several school districts have reacted to these legal developments by tightening their antidiscrimination policies to prohibit harassment on the basis of sexual orientation.
Not all circuits have moved as rapidly as the Seventh Circuit. One circuit
in particular is notorious for its homophobia and for its stubborn refusal to
apply Supreme Court equal protection jurisprudence to gay rights cases. The
Sixth Circuit has twice upheld a
(to be continued)
Philip Chandler (PhilipC152 domain aol.com) is a computer software
consultant living in
A more recent analysis is on
” Copyright 1999 by Philip Chandler. Reprinted with permission.