The issue: Does the Constitution protect homosexual conduct? What
limitations does the Constitution place on ability of states to treat
people differently because of their sexual orientation?
Two Supreme Court decisions involving
gay rights, one decade apart, have left a lot
of people wondering just where the law now
stands with respect to the right to engage in
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.) InBow er s,
the Court ruled 5 to 4 that the Due Process
Clause "right of privacy" recognized in
cases suchGr i sw ol d andR oe 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 inBow er s as a violation of the
1. Was the Court right inBow er s to view the
case as one for an as applied review?
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 meanB ow ers 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 inBow ers seemed very
concerned about the slippery slope. Could the
Court protect homosexual sodomy between
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2, effectively repealed anti-discrimination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." AfterRom e r,
speculation about the future ofB ow er s
became widespread, with people such as
Laurence Tribe predicting thatBow er s "is
not long for this world."
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
raised both substantive due process and
equal protection issues. Voting 5 to 4, the
Court overruled its earlier decision in
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
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. InRo me r , 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. DoesLaw r enc e 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
12. Justice Scalia strongly criticized the
majority's reliance, inLaw renc e, 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).
This action might not be possible to undo. Are you sure you want to continue?