Justice at Last:
Gay Equality, the Right to Privacy, and Substantive Due Process
Introduction: Lawrence v.
Many gay people are currently celebrating the
US Supreme Court decision handed down on
Most people who are even vaguely familiar with
this decision are also aware of the fact that this decision involved
recognition by the Court of the right to privacy, and that the Lawrence
Court explicitly overturned an earlier decision (Bowers v. Hardwick, 478
U.S. 186 (1986)) in which the Court had denied the claim of a right to sexual
privacy that had been made by a gay man in Georgia who had been arrested (but
ultimately not prosecuted) as “at best, facetious.” There were striking similarities between the
facts involved in both cases. Michael
Hardwick was a bartender in a gay bar in
This decision was widely regarded as one of the
coarsest, most insulting attacks upon both the legal rights and the dignity of
gay people ever handed down by a court of law in a western nation. Bowers became the target of both
immediate and sustained criticism; even some conservative groups accused the
Court of meddling in the most private of contexts (the home), and condemned
this decision as an attack on the most basic rights imaginable. Chief Justice Burger, in particular, wrote a
concurrence in which he abandoned all pretence of ruling on the legal merits of
the claim, and delivered himself of a religious tirade invoking Roman law,
biblical interpretation, and sweeping claims to the effect that sodomy statutes
had “ancient roots.” He piously observed
that gay sex was punishable by the death penalty under Roman law. Some of the harshest criticisms were meted
out by state supreme courts in the years that followed, as activists in the gay
community turned to attacking state sodomy statutes before state supreme courts
on state constitutional grounds, with considerable success. The Kentucky Supreme Court, striking down the
“To be treated equally by the law
is a broader constitutional value than due process of law as discussed in the Bowers
case. We recognize it as such under the Kentucky Constitution, without regard
to whether the United States Supreme Court continues to do so in federal
constitutional jurisprudence. "Equal Justice Under
Law" inscribed above the entrance to the United States Supreme Court,
expresses the unique goal to which all humanity aspires. In
The purpose of the present statute is not to protect the marital relationship against sexual activity outside of marriage, but only to punish one aspect of it while other activities similarly destructive of the marital relationship, if not more so, go unpunished. Sexual preference, and not the act committed, determines criminality, and is being punished. Simply because the majority, speaking through the General Assembly, finds one type of extramarital intercourse more offensive than another, does not provide a rational basis for criminalizing the sexual preference of homosexuals” (emphasis added).
Even some federal appeals court judges, who are bound by US Supreme Court precedent, expressed profound reservations relative to the Court’s reasoning and motives in Bowers. Judge Reinhardt, considered to be one of the most liberal judges on the US Court of Appeals for the Ninth Circuit, dissenting in the case of Holmes v. California Army National Guard, 920 F. Supp. 1510 (N. D. Cal. 1996) stated that:
recognize that we are bound by this court's recent decision that the military
may discharge service members who engage in homosexual conduct. See Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997). Although I must follow that decision here, I
note that it is necessarily rooted in Bowers v. Hardwick, 478 U.S. 186
(1986), a decision that I have previously described as similar in its bias and
prejudice to Plessy v. Ferguson, 163 U.S.
537 (1896). I remain confident that
someday a Supreme Court with a sense of fairness and an adequate vision of the
Constitution will repudiate Bowers in the same way that a wise
and fair-minded Court once repudiated Plessy. Indeed, I hope that day will not be long in
coming. In my view of the Constitution,
there is no more justification for discrimination against individuals because
of their sexual orientation, which is most frequently a happenstance of birth,
than there is for discrimination against blacks, Hispanics or Asians – or
against Catholics, Jews, or Muslims, who at least have the option to convert. (Holmes
Bowers was regarded by most constitutional scholars to be one of the contemporary US Supreme Court’s most embarrassing and humiliating failures. A. J. Powel, who provided the swing vote for the majority, publicly acknowledged that he had made a mistake and that he regretted his vote following his retirement from the Court. At the time that cast his vote for the majority, he remarked to one of his clerks that he had never known a homosexual. Ironically, that clerk was a closeted gay man. Having observed the manner in which “coming out” transforms human behavior towards gay men and lesbians, the writer cannot help but wonder whether the gay community would have been spared the blight cast upon the entire community by Bowers had this clerk been able to come out to A. J. Powell. It is widely known, for example, that A. J. Kennedy, who authored the majority opinion in both Lawrence and in Romer v. Evans, 517 U.S. 620 (1996) (in which the Court struck down an anti-gay Colorado state constitutional amendment in a move that was widely considered to be a harbinger of the Court’s action in Lawrence), had a gay male couple as next door neighbors, and that A. J. Kennedy and his wife frequently had weekend barbeques with this couple prior to the handing down of Romer.
Fundamental Rights and the Right to Privacy
Although most Americans believe in a right to privacy, few people are aware of the origins and extent of the right to privacy. Many Americans mistakenly believe that the right to privacy is guaranteed them by the text of the US Constitution; yet nowhere in the text of the US Constitution is there any reference to a right to privacy. Conservatives are fond of bashing the Court for the manner in which the Court derived this right, as well as the manner in which the Court has applied this right to contemporary issues that could not possibly have been foreseen by the Framers of the Constitution. Yet the vast majority of Americans believe that they are entitled to a right to privacy; differences in the beliefs of Americans with respect to the entitlement of this right tend to relate to the extent to which this right is seen as being applicable against the state and US government, not as to whether or not this right actually exists.
There are many rights that Americans take for granted, but which are not mentioned anywhere in the text of the US Constitution. In the pantheon of rights recognized by the US Supreme Court, some rights are considered to be “fundamental,” whereas other rights are not considered to be “fundamental.” Those rights that are explicitly declared in the text of the US Constitution are referred to as “enumerated” rights, whereas those rights that are not mentioned anywhere in the text of the Constitution are referred to as “unenumerated” rights. All enumerated rights are fundamental rights; however, not all fundamental rights are enumerated rights. An example of a fundamental, enumerated right is the right to freedom of speech. The First Amendment is very specific in granting to citizens of the United States the right to freedom of speech, and is very clear in stating that Congress may not abridge this right (this essay will also discuss the incorporation of this, and other, rights against the states via the Due Process Clause of the Fourteenth Amendment). The right to freedom of speech is therefore an enumerated, fundamental right. However, through interpretation of the Clause recognizing the right of people peaceably to assemble, and the Clause recognizing the right of people to petition the government for a redress of grievances, the US Supreme Court has also recognized the existence of the right of expressive association and the right of intimate association. These rights are not stated in the text of the Constitution, but are nevertheless recognized by the courts as being fundamental rights which are “peripheral” to the right of people to petition the government for a redress of grievances. It therefore follows that the rights of intimate association and the rights of expressive association are unenumerated, fundamental rights.
In Palko v. Connecticut, 302 U.S. 319 (1937), the US Supreme Court held that the US Constitution protected those rights that were “implicit in the concept of ordered liberty,” in addition to those rights which are guaranteed all Americans by the text of the Constitution. Stated differently, the Court held that those rights which were such that “neither liberty nor Justice would exist if they were sacrificed” were fundamental in nature, despite the fact that many such rights were not articulated anywhere in the text of the Constitution. The Court attempted to narrow the scope of fundamental rights to those rights that were “rooted in the traditions and conscience of our people.” This case is considered by constitutional scholars to be one of the most important cases ever decided by the Court. In addition to creating a flexible standard for the derivation of fundamental constitutional rights, the Court also held that some of these rights were made binding on the states through incorporation under the Fourteenth Amendment’s Due Process Clause.
The Right to Sexual Privacy is First Recognized
It is arguable that the Court first recognized the existence of a right to sexual privacy in the case of Griswold v. Connecticut, 381 U.S. 479 (1965). At that time, the State of Connecticut had on its books a statute that made it a criminal offence for an individual to use “any drug, medicinal article, or instrument” for the purpose of contraception, or to aid or abet any other person to use such an item for the purpose of contraception. This applied even to married couples. The Court overturned this legislation, but did so on the grounds that the statute in question interfered with a right to privacy that the Court identified as emanating from several guarantees identified in the Bill of Rights. More specifically, the Court maintained that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” The Court went on to maintain that various guarantees enumerated in the Bill of Rights created a zone of privacy. The Court reasoned that the “penumbras” of the First, Third, Fourth, Fifth, and Ninth Amendments, through the simultaneous operation of these Amendments, created a zone of privacy that rose to the level of being a fundamental constitutional right. The Court was specific in identifying the manner in which the First Amendment had already been interpreted as granting to all citizens the right of intimate association and the right of expressive association. The Court noted that the Third Amendment, with its prohibition against the quartering of soldiers in any house in times of peace without the consent of the owner, created “another fact of that privacy.” The Court relied upon the plain language of the Fourth Amendment, which explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” as creating another facet of the right to privacy. Turning to the Fifth Amendment, which is best known to Americans for its Self-Incrimination Clause, the Court held that this Clause added further substance to the right to privacy. Finally, the Court noted that the Ninth Amendment’s language and intent was consistent with the recognition of a right to privacy. (The Ninth Amendment, of course, provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Phrased differently, the fact that the Constitution recognizes explicitly the existence of specific rights should not be taken as an indication that the Constitution limits the rights that citizens enjoy only to those rights which are recognized explicitly.)
In essence, the Court viewed the
simultaneous operation of these rights, all of which are made binding on the
states by the Due Process Clause of the Fourteenth Amendment (discussed below),
as creating a fundamental right, in the form of a zone of privacy which was
such that a prohibition of the purchase or usage of contraceptives by married
couples (or the aiding and abetting of the purchase of usage of contraceptives
by married couples) ran afoul of this fundamental right. The Court then held that this fundamental
right was incorporated against the states through the operation of the Due
Process Clause of the Fourteenth Amendment.
This was an unusual case in the Court’s substantive due process
jurisprudence, in that the substantive due process cases that followed (e.g.
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833
(1992)) relied upon interpretations of the word “liberty,” as this word appears
in the Due Process Clause itself, to create zones of personal autonomy that
cannot not be encroached on by the states absent, at a minimum, the existence
of a legitimate state interest. In his
Conservatives attacked the reasoning of Griswold when this decision was handed down, and continue to do so to this day. While this commentator does not consider the logic underlying Griswold to be unsound, the language chosen by the Court to explicate its reasoning was perhaps unfortunate. Terms such as “penumbras” and “emanations” are terms used to describe phenomena observed at a séance, rather than terms one would expect to use in the reasoning of an analytically sound US Supreme Court opinion. Many legal scholars believe that Griswold is the lynchpin of the right to privacy as that right is currently recognized, and Griswold has been attacked by numerous anti-gay and anti-abortion protestors as these individuals (and groups) attempt to recriminalize abortion, and as they attempt to recriminalize and remedicalize homosexuality. However, the logic employed by the Griswold Court differs significantly from the logic employed in other decision pertaining to the right to privacy, and such attacks may in fact prove fruitless to social conservatives, even were they to succeed in overturning Griswold (which this commentator considers to be a highly unlikely development, notwithstanding the current political climate and notwithstanding recent developments that may alter the ideological slant of the US Supreme Court).
The Right to Sexual Privacy is Expanded
The Court expanded the reach of the right to privacy derived in Griswold in a decision striking down a Massachusetts statute that made it a felony for any person other than a doctor, or a pharmacist acting in accordance with a doctor’s orders, to distribute contraceptives to unmarried people in Eisenstadt v. Baird, 405 U.S. 438 (1972). Here, the Court employed an equal protection analysis invoking the Equal Protection Clause of Section I of the Fourteenth Amendment, extending the right to privacy identified in Griswold. The Court made it clear that the right to privacy inheres both in the marital relationship and in the individual. In asserting that the right to privacy inhered in the individual, the Court relied upon precedent involving the right of the people to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child (see Stanley v. Georgia, 394 U.S. 557 (1969); Skinner v. Oklahoma, 316 U.S. 535 (1942); Jacobson v. Massachusetts, 197 U.S. 11, 29 (1905)).
The gravamen of any equal protection challenge usually lies in the assertion that two groups of individuals who are similarly situated are treated differently, with resultant adverse impact to the members of one of the groups in question. In this case, the groups in question consisted of unmarried people and married people. Given the nature of the right to privacy – the fact that it inheres in the individual, not just in the marital status of the individual – it is plain to see how the Court reached the result and overturned the statute in question. The Court identified the right to privacy in Griswold, and used the Equal Protection Clause to extend the right to privacy to unmarried people in Baird.
It should be important to emphasize that both Griswold and Eisenstadt were decided by invoking the doctrine of substantive due process (described below). Griswold was decided in terms of the zone of privacy created by the simultaneous operation of several of the Amendments located in the Bill of Rights, which were then made binding upon the states by operation of the Due Process Clause. Eisenstadt was decided by extending the right to privacy identified in Griswold to unmarried couples by invoking the Equal Protection Clause of the Fourteenth Amendment. The Eisenstadt Court also invoked precedent involving the right of the people to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child (see the above citations), but this analysis was tangential to the finding of a right to privacy as identified in Griswold. Chief Justice Burger, in his dissent, bemoaned the Court’s analysis in Eisenstadt as “regrettably [harkening] back to the heyday of substantive due process.” In fact, both Griswold and Eisenstadt invoked the doctrine of substantive due process, notwithstanding Chief Justice Burger’s complaint.
At this point, the concept of substantive due process requires description and elucidation.
It should be noted at the outset that the term “substantive due process” is quite literally an oxymoron, similar to the term “yellow red car” or the term “square triangle.” This concept cannot be described without explaining a closely-related concept known as incorporation.
Although the US Constitution sets
forth a description of the composition and functions of the three branches of
government, most constitutional scholars maintain that the US Constitution is
primarily a procedural document. The guarantees
of the first eight Amendments apply to the behavior of Congress and set limits
to what Congress may and may not do, as well as describing the rights of
accused individuals against the
After the Civil War, three Amendments which are now referred to as the Civil War and Reconstruction Amendments were ratified. These were the Thirteenth Amendment, the Fourteenth Amendment, and the Fifteenth Amendment.
The Thirteenth Amendment expressly prohibits slavery and involuntary servitude, except as punishment for a crime. The Fourteenth Amendment is considerably more complex, and will be discussed below. The Fifteenth Amendment expressly prohibits denial of the vote to persons on the basis of race or prior condition of servitude (slavery). These Amendments were passed to ensure that freed slaves and African-Americans would receive fair treatment at the hands of the states, particularly at the hands of those states that had formed the Confederacy during the Civil War.
The Fourteenth Amendment: Overview
The Fourteenth Amendment has five sections. Section Five permits Congress to enforce the other sections through the passage of appropriate legislation. In the context of this analysis and the right to privacy, Section One is the most significant. Section One of the Fourteenth Amendment provides that “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The first sentence of Section One is self-explanatory and is of little relevance to the contents of this essay. However, the second sentence articulates three distinct Clauses, which are known as the Privileges or Immunities Clause, the Due Process Clause, and the Equal Protection Clause. A massive body of case law has been built through analysis and implication of the Due Process and Equal Protection Clauses.
The Fourteenth Amendment: Privileges or Immunities Clause
According to most constitutional scholars, the
purpose of the Privileges or Immunities Clause was to make binding upon the
states the first eight Amendments to the US Constitution, together with Section
9 of Article I of the US Constitution.
Most constitutional scholars blame the fact that this Clause was
virtually written out of the Constitution on Justice Miller, for his majority
opinion in the Slaughter-House Cases, 83 U.S. 36 (1873). Robert C. Palmer, however, writing for the
It should be mentioned that the US Supreme Court recently breathed new life into the Privileges or Immunities Clause, invoking this Clause for the first time since its truncation as described above, in the case of Saenz v. Roe, 526 U.S. 489 (1999); this case dealt with the rights of welfare recipients moving to states which have higher welfare benefits than the states from which the recipients moved. Some scholars have speculated that the Privileges or Immunities Clause will eventually replace the Due Process Clause as the vehicle for granting to individuals additional rights against the states, once the elasticity of the Due Process Clause is exhausted. With its emphasis on individual rights, this Clause would certainly be more congruent with the intent of the authors of the Fourteenth Amendment.
The Fourteenth Amendment: Due Process of Law
There are actually two Due Process Clauses located in the text of the Amendments to the US Constitution. The Fifth Amendment includes a Due Process Clause, stating that no person shall “be deprived of life, liberty, or property, without due process of law.” The Fourteenth Amendments Due Process Clause has already been quoted (supra). For the purpose of analysis, the Court has interpreted these Clauses almost identically; under the US Constitution, there is virtually no difference between protections from federal or state action under these Clauses. However, many state constitutions contain their own due process clauses, many of which are more generous by their terms, or as construed by state supreme courts, in extending protections to individuals, than are the Due Process Clauses of the Fifth and Fourteenth Amendments, both by their terms, and as construed by the US Supreme Court.
(Although the first eight
Amendments to the US Constitution do not include an equal protection clause or
any textual reference to equal protection, the US Supreme Court has construed
the Fifth Amendment’s Due Process Clause as subsuming an equal protection component. In Bolling v.
Sharpe, 347 U.S. 497 (1954), the
The Due Process Clauses are
ultimately derived, historically, from a similar clause in the Declaration of
This document, agreed to by the King of England in 1215, states that “No
Freeman shall be taken, or imprisoned, or be disseised
of his Freehold, or liberties, or free Customs, or be outlawed, or exiled, or
any otherwise destroyed; nor will we pass upon him, nor condemn him, but by
lawful Judgment of his peers, or by the Law of the Land.” The
core meaning of this clause is that no person may be denied his life, liberty,
or property should the law of the land forbids such a deprivation. However, the US Supreme Court has interpreted
the Due Process Clauses to have substantive components that actually prohibit
legislatures from passing certain laws in the first place. Extremely conservative jurists such as Antonin Scalia have declared this
interpretation to be unsound and to constitute a “judicial usurpation” of the
powers of the
· Procedural Due Process
Procedural due process is premised on the concept of procedural fairness. At a bare minimum, procedural due process requires that the individual must be apprised of the charges against him or her, and that the individual be granted a hearing at which he or she can dispute the charges. This hearing must afford the individual a real chance to rebut the charges against him or her, and cannot be a mere sham. Innocent people are sometimes wrongly convicted, and prohibitions against cruel and unusual punishments are also implicated in fair procedures. In addition to being granted a fair and impartial hearing, the individual may not be arbitrarily deprived of life, liberty, or property without a showing by the government that a statute, ordinance, or regulation has been violated by the individual. In other words, an individual whose behavior comports with the strictures imposed on his or her movements, actions, or activities by specific statutes, ordinances, or regulations, cannot be deprived of life, liberty, or property by the state.
However, due process does not end here.
A law may be clear, unambiguous, and carry the presumption of innocence,
yet nevertheless be abhorrent to the majority of people. Consider, for example, a law authorizing the
execution of people who commit adultery or who are openly gay. This is exactly the type of law that the
sect known as “Christian Reconstructionism,” founded
by the late Rousas J. Rushdoony,
wishes to see passed in contemporary
In the context of contemporary constitutional law, it is clear that, for the Due Process Clauses to mean anything, they must embody more than the mere “how” of the law (the manner in which the law is applied). They must also embody the “why” of the law (which kind of laws may or may not be passed in the first place).
· Incorporation: The Bill of Rights and the Due Process Clause
The Due Process Clause of the Fourteenth Amendment became the vehicle
whereby the majority of the guarantees against the
Prior to the passage of the Fourteenth Amendment, the Supreme Court was adamant in refusing to extend the reach of the guarantees of the Bill of Rights against the states. For example, in Barron v. Baltimore, 32 U.S. 243 (1833), the Court bluntly declared that “The provision in the Fifth Amendment to the Constitution of the United States declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States.” In Pervear v. Massachusetts, 72 U.S. 475 (1833), the Court held that “The provision in the 8th article of the amendments to the Constitution, that "excessive fines" shall not be "imposed, nor cruel and unusual punishments inflicted" applies to national not to state legislation,” upholding the sentence of the appellant for selling intoxicating liquors without the requisite state permission.
Following the passage of the Fourteenth Amendment and the truncation of the reach of the Privileges or Immunities Clause, incorporation under the Due Process Clause was a slow process. To some extent, it went hand in hand with the delimitation of certain rights as fundamental. In Palko (supra), the Court incorporated fundamental rights against the states, but did not incorporate all of the rights guaranteed individuals by the text of the Bill of Rights. The drive to incorporate the rights guaranteed individuals by the Bill of Rights against the states picked up speed during the 1940s and the 1950s. Justice Hugo Black believed that incorporation should have been “total.” Black believed that all of the rights guaranteed individuals by the text of the Bill of Rights should have been incorporated against the states, but he did not believe that other judicially derived fundamental rights should have been incorporated against the states. Black would probably not have approved of the manner in which the right to privacy, which is a judicially derived fundamental right, has been incorporated against the states.
Justice Felix Frankfurter adopted a very different view towards incorporation. He believed that the process of incorporation should have been incremental, and that only those sections of the Bill of Rights whose abridgement would “shock the conscience” of the federal courts should have been incorporated against the states (see Rochin v. California, 342 U.S. 165 (1952)).
· Substantive Due Process
Substantive due process is a constitutional doctrine that holds that the Due Process Clauses of the Fifth and Fourteenth Amendments regulate not only the procedures that the government must follow when depriving a citizen who has broken a law of life, liberty, or property, but also the substance of legislation that can be enacted by legislative bodies. This doctrine is controversial, and many right wing jurists reject its validity entirely (A. J. Antonin Scalia and A. J. Clarence Thomas represent examples of this mindset). Nevertheless, substantive due process is the bedrock principle upon which rest many of the rights that most Americans take for granted, and few people doubt that it is here to stay. The Court, which is the final interpreter of the law and of the US Constitution, has read into the Fifth and Fourteenth Amendments what could be characterized as “due substance” clauses. The rights in question are made binding on the states through incorporation under the Due Process Clause of the Fourteenth Amendment. The Court is empowered to interpret the word “liberty” as it appears in the Due Process Clauses. Through interpretation of the word “liberty,” the Court has held that there is indeed substance to be protected by the Due Process Clauses. The boundaries between procedural due process and substantive due process are not always clear, and the contours of this substance have been at issue in heated debates between “strict constructionists” and those who favor a more expansive interpretation of the Constitution. The Rehnquist court elucidated its position as pertains to substantive due process by writing the following, excerpted from Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992):
[The Fourteenth Amendment’s Due
Process Clause] declares that no State shall "deprive any person of life,
liberty, or property, without due process of law." The controlling word in the case before us is
"liberty." Although a literal
reading of the Clause might suggest that it governs only the procedures by
which a State may deprive persons of liberty, for at least 105 years, at least
since Mugler v. Kansas, 123 U.S. 623,
660-661 (1887), the Clause has been understood to contain a substantive
component as well, one "barring certain government actions regardless of
the fairness of the procedures used to implement them." Daniels v. Williams, 474
arguments to the contrary which had seemed to me persuasive, it is settled that
the due process clause of the Fourteenth Amendment applies to matters of
substantive law as well as to matters of procedure. Thus all fundamental rights comprised within
the term liberty are protected by the Federal Constitution from invasion by the
States. Whitney v. California,
[T]he guaranties of due process,
though having their roots in Magna Carta's "per legem terrae" and considered
as procedural safeguards "against executive usurpation and tyranny,"
have in this country "become bulwarks also against arbitrary
legislation." Poe v. Ullman,
The most familiar of the substantive
liberties protected by the Fourteenth Amendment are those recognized by the
Bill of Rights. We have held that the
Due Process Clause of the Fourteenth Amendment incorporates most of the Bill of
Rights against the States. See, e.g., Duncan v. Louisiana, 391
.It should be noted that Griswold
(supra) (the case dealing with the
right of married people to avail themselves of contraception) was decided by
invoking substantive due process, notwithstanding the crabbed interpretation of
this concept explicated by A. J. Scalia in Lawrence
“At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”
The irony of this statement, which followed the Court’s devastating ruling in Bowers v. Hardwick, 478 U.S. 186 (1986), is not lost on this commentator. It was also not lost on the Lawrence Court, which took note of this statement and of the inconsistency created in the law both by this statement and by subsequent legal developments (e.g. Romer v. Evans, 517 U.S. 620 (1996), in which the Court affirmed the overturning of Colorado’s infamous anti-gay “Amendment 2” by the Colorado Supreme Court).
In 1967, the US Supreme Court handed down an opinion striking down “miscegenation” statutes (which prohibited white people from marrying non-white people). The bulk of this decision (Loving v. Virginia, 388 U.S. 1 (1967)) rested on interpretation of the Equal Protection Clause; however, the Court also noted that the Virginia “miscegenation” statute “also deprive[s] the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment.”
In Meyer v. Nebraska, 262 U.S. 390 (1923), the Court held that a Nebraska statute that made it illegal to teach children in any language other than English until the child had passed the eighth grade violated the Due Process Clause of the Fourteenth Amendment.
Correcting a Misfire: The Court Overrules Bowers and Apologizes
The US Supreme Court very seldom
directly overrules itself, and on the few occasions that it does so, the Court
takes great pains to explain why it has chosen to do so. This is exactly what A. J. Anthony Kennedy,
writing for the
Cases in which the Court
overrules itself are sometimes justified by the overruling Court on the grounds
that societal consensus has changed with respect to the law in question. For example, prohibitions against cruel and
unusual punishment (prohibited by the Eighth Amendment) have resulted in usage
of the electric chair being discontinued in states such as
“Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration, in and of itself, is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.
“Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled…………
present case does not involve minors. It does not involve persons who might be
injured or coerced or who are situated in relationships where consent might not
easily be refused. It does not involve public conduct or prostitution. It does
not involve whether the government must give formal recognition to any
relationship that homosexual persons seek to enter. The case does involve two
adults who, with full and mutual consent from each other, engaged in sexual
practices common to a homosexual lifestyle. The petitioners are entitled to
respect for their private lives. The State cannot demean their existence or
control their destiny by making their private sexual conduct a crime. Their
right to liberty under the Due Process Clause gives them the full right to
engage in their conduct without intervention of the government. "It is a
promise of the Constitution that there is a realm of personal liberty which the
government may not enter." Casey,
supra, at 847. The
These statements are remarkable
in that they constitute what can only be interpreted as an apology to gay
Americans for a mean-spirited and ugly prior decision (Bowers) that dehumanized
gay Americans and that mocked the claim that gay Americans enjoy any right of
sexual privacy. As this commentator has
observed in an earlier essay (at www.doaskdotell.com/readers/chandler.htm),
the tone of a US Supreme Court decision can be almost as important as the
result. Bowers was written in
tones of sneering contempt;
The decision was written by A. J. Anthony Kennedy, and was joined by A. J. Stephen Breyer, A. J. Ruth Bader Ginsburg, A. J. David Souter, and A. J. John Paul Stevens. A. J. Sandra Day O’Connor wrote a separate concurrence, agreeing with the result but adopting an equal protection analysis. O’Connor agreed that the Texas statute was unconstitutional, but refused to join her five colleagues in finding that the right to privacy under the Due Process Clause extended to the right of gay people to have sex in private. Instead, she advanced an equal protection argument, positing that the best method of rectifying the injustice imposed on both gay and straight Americans by the existence of sodomy statutes would be to enforce them vigorously against all citizens; this would, of course, result in public outrage and rapid repeal of such legislation. Although she did not accept the substantive due process analysis adopted by the majority of the Court, her vote provided a sixth voice on the Court finding that prohibitions against consensual gay (and heterosexual) sodomy violate the US Constitution.
Whining from the Right Wing
A. J. Antonin Scalia dissented and was joined by both A. J. Clarence Thomas and C. J. William Rehnquist. Scalia’s dissent was lengthy, impassioned, and longer than the majority opinion. In the dissent, Scalia angrily denounced the Court’s stare decisis jurisprudence for upholding Roe while overturning Bowers. He pointed out that Roe had been affirmed twice, despite the fact that the Court had been under fire for handing down Roe in the first place, and angrily contrasted the Court’s behavior in upholding Roe with the Court’s behavior in overturning Bowers, furiously denouncing the Court for what he considered to be selective, result-oriented application of the doctrine of stare decisis. A more searching examination of these cases and their societal and legal impact suggests to this commentator that this comparison is inapposite and without merit. When Roe was handed down, many states were in the process of repealing their abortion statutes. By the time Lawrence was decided, many state supreme courts had handed down decisions predicated on state constitutional grounds, invalidating their constitutionality and rendering them unenforceable; but only one state (Nevada) repealed its sodomy statute in the 17 year period between the handing down of Bowers and the handing down of Lawrence. The impact of Roe was to polarize the nation in such a manner as to cause a deep divide in American society. While Bowers certainly created an uproar, the impact of Bowers was largely (but certainly not entirely) limited to the lives of gay and lesbian Americans; furthermore, Bowers resulted in immediate, sustained, and vigorous criticism of the Court from many different quarters on the political spectrum (including criticism from such conservative organizations as the Cato Institute). It was disingenuous of Scalia to wrench these cases from their temporal and factual contexts; yet Scalia has never been consistent in his jurisprudence, his claims to the contrary notwithstanding. The above is further evidence of Scalia’s lack of intellectual coherence.
A careful reading of Scalia’s dissents in both Romer
soon makes it clear that he continues to view gay people not as a group defined
by sexual orientation or by an innate attraction to members of the same sex;
instead, he views gay people as heterosexuals who choose to “behave badly” by
accepting the “homosexual lifestyle.”
This crude and cruel analysis permits Scalia
to compare gay people to adulterers, child molesters, murderers, and
practitioners of incest and bestiality (see both dissents, ibid.). He is apparently
joined in this view of gay people by A. J. Clarence Thomas and by the late C.
J. William Rehnquist. His dissent in
The Court “laid
waste” to absolutely nothing. While it
is certainly permissible to question the manner in which the Court has blurred
the tripartite analytical structure with which it approaches challenges to the
constitutionality of legislation under the Due Process and Equal Protection
Clauses, the Court’s behavior is not without precedent. In the past, rational basis review almost
always resulted in victory for the state, and the level of review applied in
any particular case was virtually outcome-determinative (see Heller
v. Doe, 509 U.S. 312 (1993)).
However, when it is clear to the Court that the legislation in question
is intended to give effect to a bare desire to harm a politically unpopular group, the traditional rational basis standard of review
becomes more searching. As A. J. O’Connor
remarked in her concurrence in
When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.
have been most likely to apply rational basis review to hold a law
unconstitutional under the Equal Protection Clause where, as here, the
challenged legislation inhibits personal relationships. In Department of Agriculture v. Moreno, for example, we held that a law preventing
those households containing an individual unrelated to any other member of the
household from receiving food stamps violated equal protection because the
purpose of the law was to "'discriminate against hippies.'" 413
In short, the form of rational
basis review applied by the majority in
It is important to stress the fact that, although
Changes in the composition of the Court as the
result of the confirmation of Chief Justice John Roberts and the pending
confirmation of Harriet Miers could have a profound
impact on the direction of the Court for several decades. At the time of writing, it is difficult to
determine the nature of this impact.
Neither candidate has expressed any views pertaining to the issue of
equality for gay men and lesbians, and the hard right is currently annoyed and
angered by the fact that Harriet Miers hosted a
conference attended by several pro-choice icons and feminists. It is known that John Roberts, while working
as a partner at Hogan & Hartson, provided
assistance to Jean Dubofsky, the former Colorado
Supreme Court Justice who argued before the US Supreme Court for the plaintiffs in Romer v. Evans (which is to say that he
provided assistance to the litigator who argued that
This commentator considers it highly unlikely
that the US Supreme Court would reverse Lawrence v. Texas even should a
vehicle arrive in the form of a legitimate Article
With grateful thanks to the following individuals for their time, effort, and patience:
©Copyright 2005 by Philip Chandler. All rights reserved subject to fair use. Reprinted here with permission as a courtesy to readers.
Here is the author’s new blog (2/2007): http://gayequalityandthelaw.blogspot.com/index.html
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