Gay Rights Confront the Constitution, page 11

Gay Rights Confront the Constitution:

The Meaning of Romer and Lawrence1

Bruce W. Frier
University of Michigan

The last eight years have seen the transformation of our constitutional framework insofar as gay rights are concerned, in two fundamental decisions: Romer v. Evans (116 S.Ct. 1620, 517 U.S. 620), which in 1996 declared unconstitutional a popularly adopted amendment to the Colorado state constitution that precluded all state or local efforts to protect persons based on their sexual orientation or conduct; and Lawrence v. Texas (123 S.Ct. 2472, 539 U.S. 558), which in 2003 declared unconstitutional a Texas statute forbidding two persons of the same sex from engaging in “deviate sexual intercourse.” This latter decision, as you will all doubtless remember, overruled the notorious Bowers v. Hardwick (106 S.Ct. 2841, 478 U.S. 186), a 1986 decision that found no constitutionally protected right to engage in private acts of homosexual sodomy.2

All three decisions occasioned vigorous dissents, and the broader issue that they raise is plainly still divisive from a legal perspective. I am here today mainly to serve as a doormat for Jeff’s discussion of social constructionism in the three cases (he will reach out to the lower court records as well). My principal aim is to explain to you, very briefly, why Romer and Lawrence have each occasioned considerable unease among constitutional scholars. As I set out the reasons for this unease, it may seem to some of you that I am critical of the outcome of these two decisions, but nothing could be further from the truth. Rather, my point is that the extension of constitutional protection to gay rights has come at a not inconsiderable cost to traditional Fourteenth Amendment theory, and that one sign of this strain has been the majority’s willingness to resort to unfamiliar, controversial, and ultimately perhaps indefensible judicial techniques of interpretation. (Jeff’s social constructionism may well be among these techniques.) My own view, however, is that what the Supreme Court and its academic associates should actually be doing is not to pussyfoot awkwardly around the edges of this problem, but instead to confront it directly. They should begin the process of radically reconstructing Fourteenth Amendment doctrines in a more modern and more convincing mode.

Before I tackle the Fourteenth Amendment itself, let me begin with an example of the techniques that have raised scholarly eyebrows. In his majority opinion for Lawrence, Justice Kennedy counters at some length the argument of Chief Justice Warren Burger, in a Bowers concurring opinion, that “the history of Western civilization and ... Judeo-Christian moral and ethical standards stand uniformly opposed to homosexuality.” Kennedy asserts that Burger’s view had ignored “other authorities pointing in the opposite direction,” including the 1957 Wolfenden report recommending repeal of British laws punishing homosexual conduct, the subsequent British implementation of that recommendation in 1967, and ([o]f even more importance, writes Kennedy) a 1981 decision by the European Court of Human Rights holding that a Northern Ireland law proscribing consensual and private homosexual conduct was invalid under the European Convention on Human Rights. (Lawrence, 2481, cf. 2483.3)

This passage of the Lawrence opinion is troubling in particular because it apparently represents the first time that a Supreme Court majority has cited foreign human rights decisions in a way that apparently grants them at least a persuasive authority in determining American human rights law under our Constitution. The problem here is not so much the citation itself, but rather that Justice Kennedy gives no explanation of the method underlying his citation: why some foreign legal developments should be singled out as important for American law, while other developments (say, for instance, the oppression of gays in Malaysia or Zimbabwe) should not; whether this importance is merely of passing interest as a legal parallel, or also of actual legal weight (perhaps in the sense that when American human rights law diverges from foreign law, the Supreme Court is obliged to give a more robust account of the reasons for the divergence); and so on. This problem could become quite salient if, for instance, the Supreme Court now felt itself constrained to consider the “cruel and unusual character of capital punishment under the lens, not just of prevailing American values, but also of values in Europe and elsewhere.” What rules would control such a consideration of what Kennedy describes as “wider civilization”? As Justice Scalia observes in his scathing dissent to Lawrence, “The Court’s discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since ‘this Court ... should not impose foreign moods, fads, or fashions on Americans.’ (Lawrence, 2495, citing Thomas, J., in another case.) In constitutional law it is a matter of elementary prudence that what goes around, comes around; and there is considerable risk in Kennedy’s smorgasbord approach to the law of other nations.

The underlying problem here stems from the first section of the Fourteenth Amendment, which appears (when taken in conjunction with the power of judicial review for unconstitutionality) to grant the Supreme Court considerable power in vetting state law for two important kinds of fatal defects. (Be warned, for purposes of time I am going to abbreviate considerably here.) First (at least in our order of consideration), “No State shall ... deny to any person within its jurisdiction the equal protection of the laws” -- the equal protection clause; second, “No State shall ... deprive any person of life, liberty, or property, without due process of law” -- the due process clause.

Ever since the Fourteenth Amendment came into force in 1868 during the Reconstruction period, the equal protection and the due process clauses have been central to American constitutional jurisprudence. The story of this jurisprudence is long and tangled, but suffice it to stress two fundamental aspects: first, the Supreme Court has never hesitated to strike down state law whenever it is convinced that these clauses have been violated; second, precisely because of the overwhelming and at times quite devastating nature of this competence, the Supreme Court has tried to be meticulous about establishing and maintaining more or less precise restraints on when these two clauses may be properly and effectively invoked. What is perhaps most significant about the Romer and Lawrence decisions is that they expose fundamental problems in this system of restraints, problems that are, in fact, so severe for both the clauses as to necessitate a re-think of the entire Fourteenth Amendment structure.

Let us begin with Romer v. Evans, an equal protection case. In 1992, through a substantial majority in a statewide referendum, the citizens of Colorado adopted Amendment 2, a constitutional amendment prohibiting (on the U.S. Supreme Court’s interpretation) all legislative, executive or judicial action at any level of state or local government designed to protect ... homosexual persons. (Romer, 1623.) Before this amendment could be implemented, several state residents, both gay males and lesbians, brought suit alleging that its enforcement would subject them to immediate and substantial risk of discrimination on the basis of their sexual orientation. In essence, their assertion was that they were being discriminated against, being treated unfairly, as a group -- a classic equal protection claim.

The problem, of course, is that almost all legislation discriminates against groups in some way or another. For instance, a tax law imposing higher taxation rates on those with higher incomes is discriminatory against persons who make a lot of money. In order to resolve this problem, the Supreme Court has traditionally discriminated itself among various types of groups, favoring some more than others. In the case of favored groups (called “suspect classifications”), state laws are subjected to very close scrutiny, and discriminatory laws are quite routinely found unconstitutional. By contrast, laws that discriminate against other groups can still pass muster if the Supreme Court can discover a rational basis for the law -- in the usual doctrine, irrespective of whether this rational basis corresponds to the actual purpose of the law or the legislative reason for its adoption. Where such a basis can be found, the laws are regularly constitutional.

Granted this logic, it is quite important for potential plaintiffs to qualify as a suspect classification. The Supreme Court’s list is now all but closed. The Court began with discrimination on the basis of race and ethnicity (the original target of the Fourteenth Amendment, and still today the chief subject of equal protection decisions), but it has gradually expanded the list to include discrimination on the basis of sex, membership in Native American tribes, legal status as an alien, and illegitimate birth. Although the principle uniting these categories is obscure, it is clear that the Court is especially sensitive to immutable characteristics, such as race or sex, for which individuals do not bear personal responsibility. The initial difficulty for the plaintiffs in Romer v. Evans was, of course, that gays and lesbians have never been regarded as a protected category under the equal protection clause, and that their eligibility cannot easily be promoted without judicial acceptance of the contested theory that homosexuality is genetically hard-wired and immutable. Further, this was a group whose most characteristic conduct (homosexual sodomy) was expressly held not to be a fundamental right under Bowers v. Hardwick, a case the Court had decided just ten years previously.

In any event, the 6-3 majority opinion in Romer, written by Justice Kennedy, neither tackled Bowers nor granted gays and lesbians any special status as a suspect classification. Instead, it ruled that the Colorado amendment was unconstitutional under the rational basis test. But in order to achieve this result, it had to embark upon some extraordinary intellectual gymnastics.

A Denver lawyer who is today a colleague of mine at the Michigan Law School devised the winning strategy for the Romer plaintiffs. The plaintiffs' aim was to focus narrowly on the virulently homophobic advertising campaign that led to the popular adoption of Amendment 2, so as to produce a ruling narrowly tailored to these specific circumstances, and hence non-threatening since it would have minor precedential value. This strategy worked. Justice Kennedy based his analysis on two propositions: First, the [Colorado] amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and ... invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests. (Romer, 1627.)

The general reasoning in Kennedy’s opinion is perhaps most easily explicable by comparison with a 1985 decision that he does not cite (Cleburne v. Cleburne Living Center, 105 S.Ct. 3249, 473 U.S. 432). In that case, a Texas city had tried, in effect, to use a zoning ordinance in order to prevent the operation of a home for the mentally retarded. The Supreme Court declined to accept mental retardation as a suspect classification, and so it used a rational basis test; but it nonetheless found against the city, holding, among other things, that “requiring the permit in this case appears ... to rest on an irrational prejudice against the mentally retarded.” (Cleburne, 3260.) The general idea is that, at least in some instances, the legitimate ends of government may not be achieved by singling out an unpopular class of citizens and placing special burdens upon them.

The Romer decision is substantially similar in its reasoning. But it is therefore easily exposed to a vitriolic dissent by Justice Scalia -- who, I should stress, is an accurate and perceptive critic of the majority’s reasoning in both Romer and Lawrence even though the force of his comments is considerably vitiated by his overt homophobia. What Scalia focuses on is the nature of the supposed animus against gays and lesbians. “In Bowers v. Hardwick, ... we held that the Constitution does not prohibit what virtually all States had done from the founding of the Republic until very recent years -- making homosexual conduct a crime. ... If it is constitutionally permissible for a State to make homosexual conduct criminal, surely it is constitutionally permissible for a State to enact other laws merely disfavoring homosexual conduct. ... And a fortiori it is constitutionally permissible for a State to adopt a provision not even disfavoring homosexual conduct, but merely prohibiting all levels of state government from bestowing special protections upon homosexual conduct.” (Romer, 1631-1632; his emphasis.) And he continues: “I had thought one could consider certain conduct reprehensible -- murder, for example, or polygamy, or cruelty to animals -- and could exhibit even ‘animus' toward such conduct. Surely that is the only sort of ‘animus' at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries-old criminal laws that we held constitutional in Bowers.“ (Romer, 1633.)

Scalia’s logic seems to me unassailable, at any rate if one averts one’s gaze from the truly foul campaign that Colorado for Family Values had waged in order to get this amendment passed. But the Romer majority never actually alludes to this campaign (within Kennedy’s opinion the animus is purely a mental construct, a back-engineered inference from the result4), nor does the opinion touch upon or even mention Bowers itself (purportedly from fear of alienating Justice O’Connor, who had joined the 5-4 Bowers majority as well as the Kennedy opinion in Romer). But there were two serious consequences of these failures. First (and most importantly), by alluding so coyly to the campaign for Amendment 2, Kennedy avoided coming to grips with the exact nature and sources of anti-gay prejudice in modern America. But only on this basis would he have been able to examine why gays and lesbians should or should not be protected as a group from malicious legislative attacks by a hostile popular majority. Second, Kennedy also could not articulate the perception that Scalia (that Cassandra of the right) expressed so forcefully: namely that, unless the intellectual make-up of the Supreme Court changed, Bowers v. Hardwick was now doomed.

Unfortunately, criminal cases involving private, consensual, and uncompensated sexual conduct are vanishingly rare, so it took another seven years for a new case to reach the Supreme Court B where, astonishingly, there had been no personnel changes in the interval. A malicious phone call from a neighbor in Houston, Texas, led to the arrest and conviction of an interracial gay couple who were having sex, in the privacy of their own home, when police officers entered and observed them. There are more opinions in Lawrence v. Texas, but the same basic 6-3 line-up and the same main protagonists: Justice Kennedy (writing for a five-member majority, with Justice O’Connor concurring separately on different grounds), and Justice Scalia for the dissent.

As the majority acknowledges, Lawrence could have been decided under a number of different constitutional theories. Much of the majority opinion seems to go off on one doctrine of substantive due process, which holds that governmental infringements of fundamental constitutional rights are subject to strict judicial scrutiny. Such rights are thought to have a value so essential to individual liberty in our society that they justify the Justices reviewing the acts of other branches of government quite harshly. The list of such rights is not long. One type of particular importance is the fundamental right to privacy, which includes various forms of freedom of choice in matters relating to an individual’s personal life, including rights to freedom of choice in family relationships, child bearing, and child rearing. Roe v. Wade is, of course, the most famous decision affirming this right. The common thread in these decisions is that they protect only "those fundamental liberties that are 'implicit in the concept of ordered liberty,' such that 'neither liberty nor justice would exist if [they] were sacrificed.'" (Bowers, 2844, citing Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149.)

As many of you will remember, the Bowers v. Hardwick majority found there was no fundamental right to engage in homosexual sodomy. It did so by determining that the Supreme Court’s earlier decisions defining a fundamental right to privacy did not bear “any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy.” (Bowers, 2844.) In particular, the right to engage in sodomy was not “implicit in the concept of ordered liberty,” and hence not a necessary part of the liberty protected by due process; nor was this right so “deeply rooted in this nation’s history and tradition” that it should be judicially protected from the legislative process. In brief, Hardwick’s claim of personal privacy did not meet the rather severe traditional threshold requirements for a fundamental constitutional right and hence it did not necessitate an extraordinary act of judicial intervention.

It is quite easy to criticize Bowers, particularly for Justice White’s moral priggishness and overt homophobia. Rather more difficult, however, is to explain exactly why the decision is wrong on purely legal grounds. In any case, a superficial reading of the Lawrence opinion can easily lead to the misleading impression that, in overruling Bowers, the Supreme Court was also proclaiming a new fundamental right. Justice Kennedy lards his opinion with up-beat proclamations of the value of liberty, starting from its opening sentence: “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places.” (Lawrence, 2475.) In one of the most glorious passages, Kennedy opines that: “The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. (Lawrence, 2478.) Elsewhere, Kennedy even quotes a notoriously witless formulation in the 1992 Casey decision: “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.” (Lawrence, 2481.)5

But all this gusty rhetoric cannot quite conceal the shabby truth at the heart of Lawrence: that Kennedy can never bring himself to describe what John Geddes Lawrence and Tyron Garner were doing together in their bed as involving the exercise of a fundamental constitutional right. This point did not escape Justice Scalia’s eagle eye. As he observes, “Though there is discussion of ‘fundamental proposition[s],’ ... and ‘fundamental decision,’ ... nowhere does the Court’s opinion declare that homosexual sodomy is a ‘fundamental right’ under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a ‘fundamental right.’ Thus, while overruling the outcome of Bowers, the Court leaves strangely untouched its central legal conclusion ... “ (Lawrence, 2488; his emphasis.)

Indeed, the central holding of Lawrence is tucked away at the very end of the majority opinion: The Texas statute furthers no legitimate state interest that can justify its intrusion into the personal and private life of the individual. (Lawrence, 2484.) As Scalia puts it, [T]he Court simply describes petitioners' conduct as ‘an exercise of their liberty’ -- which it undoubtedly is -- and proceeds to apply an unheard-of form of rational-basis review that will have far-reaching implications beyond this case. (Lawrence, 2488.) What Scalia fears is spelled out later in his dissent: State laws against bigamy, same-sex marriage, adult incest, prostitution, ... adultery, fornication, bestiality, and obscenity are ... sustainable only in light of Bowers' validation of laws based on moral choices. ... The impossibility of distinguishing homosexuality from other traditional ‘morals' offenses is precisely why Bowers rejected the rational-basis challenge. ‘The law,’ it said, ‘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.’ (Lawrence, 2490.)

It is hard to deny, at least within any conventional framework of morality, that Scalia has a point; we do need a convincing way to explain why, on the one hand, consensual private homosexual sex should be protected from the ordinary legislative process through constitutional safeguards, while, on the other, bigamy or adult incest should not. The problem, of course, is that widespread morality has often been used in the past as a basis for statutory policy, in a wide variety of areas, and that this basis has also usually satisfied constitutional requirements that statutes, when they do not offend against fundamental rights, at least have a rational basis -- a standard that, in the past, has been relatively easy to meet.

Where one tends to part company with Justice Scalia is when he presses on to hold that the majority’s failure in this respect is necessarily fatal to the holding in Lawrence. Indeed, I start from the position that the outcomes in both Romer and Lawrence are obviously correct. But what these decision require, I believe, is a new constitutional jurisprudence that moves beyond the traditional justifications for categories protected under the Fourteenth Amendment (Is homosexuality genetic or a learned activity? Is homosexuality a matter of continuing choice or an irreversible condition?), granted that the answers to such questions will always be both elusive and divisive. As to substantive due process, the Supreme Court needs to abandon traditional societal values as a fetter on discretion, and devise, instead, a repertory of those rights that are associated with the most basic assertions of personhood and individuality in the modern age; for it is these assertions that make up what should be the enduring core of constitutionally protected liberty.

The need for protective constitutional intervention has come to be perceived as acute in the case of gays, as is shown not only by Romer and Lawrence, but also by a long line of troubled decisions in various state Supreme Courts. But such an intervention needs to occur within a framework that is far more malleable than current Fourteenth Amendment doctrine, and above all it needs to be willing to take far greater account of how the social landscape evolves over time. Whether the Supreme Court will have, in the near future, an opportunity to devise such a framework in deciding a specific case, and whether, if the opportunity arises, they will also have the will to act, remains an entirely open issue.

Let me make two final points and then I'll turn it over to Jeff. First, although Justice Kennedy was clearly fastidious (if not outright prissy) in coming to terms with the reality of gay experience in modern America, his opinions in Romer and Lawrence have been, in terms of that reality, remarkable examples of successful social engineering. Romer almost immediately removed from the scene a host of popular initiatives designed to stir up antipathy toward gays; these ill-intentioned measures virtually vanished in the face of relatively mild Supreme Court disapproval. And Lawrence, despite its legal modesty, seems to be having a similar result; who would possibly have guessed that, less than a year after Lawrence was decided, we would be debating not homosexual sodomy, but rather same-sex marriage? Who, that is, apart from Justice Scalia, who once again called this shot with uncanny precision. And here it must be conceded that Kennedy’s high-flown rhetoric, despite its ultimate vacuity, may have rendered a signal service in altering the climate.

Second, however, there is, in legal terms, a price to be paid for caution of this variety. No doubt the members of the majority had a good sense of what they were about when they assigned authorship of these two opinions to their most conservative member. But what Kennedy fashioned in his two opinions is so jerry-built that it offers no permanent shelter of any kind, much less a firm base for subsequent judicial development. Indeed, I want to suggest that this was the very essence of what the Supreme Court sought to achieve in Romer and Lawrence: to take a reasonably progressive stand that would not commit it if the going then turned out to be rougher than expected, if the general public or the legislative reaction turned ugly. There may be considerable prudence in such circumspection, but it also offers modest comfort to those who had been hoping for something bolder. In the fiftieth year of Brown v. Board of Education, we can already say with some confidence, I think, that Romer and Lawrence are not of Brown caliber.6

1 This paper has, I must confess, nothing much to do either with feminism or with the classics. I was asked to provide a legal background for Jeff Carnes’s discussion of some broader issues that are more pertinent to the themes of the conference. I am grateful to Marilyn Skinner and her anonymous referee for commentary on this piece.

2 The full text of these opinions is available widely on the Internet. One good source is the Supreme Court Collection maintained by Cornell University:

3 Justice Kennedy uses the European Court decision to show that Chief Justice Burger had generalized too broadly in Bowers (1481), and also to argue that: “To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere.” (Id. at 2483.)

4 As Justice Kennedy writes, “[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” (Romer, 1628.) If the inference is inevitable, further examination of the evidence is not required.

5 This passage is lampooned in Justice Scalia’s dissent as the “famed sweet-mystery-of-life passage.” Scalia comments: “[I]f the passage calls into question the government's power to regulate actions based on one's self-defined ‘concept of existence, etc.,’ it is the passage that ate the rule of law.” (Lawrence, 2489; his emphasis.)

6 [Added in March, 2005:] The Supreme Court’s reservation to itself of a retreat right is arguably relevant to its recent refusal to grant certiorari in Lofton v. State of Florida, 125 S. Ct. 869; 160 L. Ed. 2d 825 (Jan. 10, 2005), a case challenging a 1977 Florida law that forbids adoption by gay couples. As a Washington Post reporter commented the next day, this decision “may signal the court's reluctance to move into a politically charged area at a time when its future membership is uncertain because of Chief Justice William H. Rehnquist’s bout with cancer -- and when the country is fresh from a bruising presidential election marked by a voter backlash against the prospect of more Massachusetts-style court rulings on same-sex marriage.” Article cited from