Oregon State Bar Bulletin JUNE 2002

Unfinished Trilogy
The Supreme Court and secual orientation
By Jeff Bleich and Kelly Klaus

While the Supreme Court has issued a vast number of decisions in the past five decades concerning the civil rights of women and minorities, its has issued just three cases directly affecting gays and lesbians, all of which date back to 1986. Though few in number, the decisions are among the past decade's most volatile, in terms of the exchanges within the sharply divided Court and in the public responses to what the Court has said. While national attitudes concerning the rights of gays and lesbians appear to have changed substantially over the past few decades, the Court's decisions may suggest that the law is not maintaining the same pace.

A STORMY BEGINNING: BOWERS
The trilogy begins with Bowers v. Hardwick (1986), a lightning rod for contemporary debate over the Court's treatment of gay and lesbian issues. Viewed by some as the 20th century's version of 'Dred Scott' and by others as a classic case of judicial self-restraint, the case remains the baseline for all subsequent discussion of the Court's treatment of issues affecting gays and lesbians.

The case started when police in Georgia, acting on a tip regarding an unrelated crime, entered Michael Hardwick's home and discovered him in bed with another man. The D.A. filed charges under Georgia's law criminalizing sodomy but then decided not to press charges 'unless further evidence developed.' Hardwick then filed a federal action, seeking to overturn the Georgia statute.

The Supreme Court ruled against Hardwick, 5-4. Justice White's majority opinion framed three related issues. The first was whether the Court's major privacy cases - spanning the education of one's children to abortion rights - extended to 'confer a right of privacy that extends to homosexual sodomy.' The majority thought that because the earlier cases dealt with the 'connection between family, marriage, or procreation,' while Hardwick's case (according to the majority) rested on 'homosexual activity,' it was 'evident that none of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy.'

Second, the majority said Hardwick was asking the Court to 'announce a fundamental right to engage in homosexual sodomy.' Surveying historical laws criminalizing sodomy, including laws in most states at the time the 14th Amendment was adopted, the Court said it was 'quite unwilling' to create a new 'fundamental right' subject to heightened constitutional scrutiny. 'The Court is most vulnerable and comes nearest to illegitimacy,' the majority wrote, in cases involving 'judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.' The majority expressed deep 'resistance' to expanding the list of fundamental rights to protect Hardwick's conduct.

Third, the majority rejected the argument that heightened privacy concerns applied because enforcement of criminal laws against sodomy almost always necessitated intrusion into the home. It distinguished Stanley v. Georgia (1969), which said a state could not punish reading obscene materials in the home, on the ground that the underlying activity received some First Amendment protections.

Justice Harry Blackmun wrote an impassioned dissent, decrying the Court's holding as 'a far greater threat to the values most deeply rooted in our Nation's history than tolerance of non-conformity could ever do.' Blackmun argued that the case fell within the Court's protection of privacy and the right to define oneself through the relationships that one forms. Blackmun also took issue with the Court's reliance on the longstanding proscription of sodomy, quoting Justice Holmes's view that 'it is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.'

Subsequent events revealed that Blackmun's anger stemmed not only from the depth of his disagreement with the majority opinion, but from the fact that Blackmun had come very close to prevailing. Justice Lewis Powell's short concurring opinion agreed there was 'no fundamental right' protecting Hardwick's conduct, but suggested the Eighth Amendment's ban on 'cruel and unusual punishments' might bar a prison sentence for Hardwick's conduct. Because the state had declined to prosecute Hardwick, Powell found it unnecessary to resolve the question. Press reports at the time speculated that Powell might have switched his vote, a fact he confirmed following his retirement. The net effect of Powell's switch was that White's opinion, which originally had been drafted as a dissent, became the Court's.

Criticism of Bowers has been particularly harsh. While some have objected to the majority's narrow standard for enumerating 'fundamental rights,' others have denounced the Court for what they've described as the majority's unabashed hostility toward gays and lesbians. Among other things, critics have pointed (as did Blackmun's dissent) to: 1) the majority's 'almost obsessive focus' on 'homosexual sodomy,' notwithstanding the fact that the Georgia law on its face applied to hetero- as well as homosexual sodomy; 2) the majority's comparison of 'voluntary sexual conduct' between gays and lesbians to adultery and incest; and 3) what critics have called the majority justices' unquestioning acceptance and tacit endorsement of hateful and dehumanizing laws. On the last point, critics have especially denounced Chief Justice Burger's short concurrence, which reminded readers that the Romans punished homosexual sodomy with death, and which declared that ruling for Hardwick 'would be to cast aside a millennia of moral teaching.'

Although the Court has not revisited Bowers since 1986, the decision has greatly influenced both the lower courts' and litigants' decisions in many of the decade's high-profile cases dealing with punitive sanctions of gays and lesbians. Through much of the late 1980s and 1990s, litigation focused on government agencies' firing or discharging of men and women simply on the basis of their being homosexual - most notably litigation challenging the military's 'don't ask, don't tell' policy. Challenges based on the Equal Protection Clause noted that, in addition to reserving the Eighth Amendment question (as noted in Powell's concurrence), the Bowers majority expressly said it was not deciding whether gays and lesbians should receive the heightened protection afforded to certain minority groups. Many lower federal courts therefore rejected claims pursuing this equal protection theory on the ground that, if government could criminalize conduct that purportedly 'defined' a class of people, it could use non-criminal sanctions of individuals with a 'propensity' to engage in such conduct.

Many have criticized this purported distinction between 'status' and 'conduct,' arguing, for example, that 'propensity'-based discrimination is unjustifiable. However, in light of Bowers, the litigants in these cases were (perhaps understandably) chary of seeking Supreme Court review of the lower court decisions. Many believed that, in light of what they perceived as the Court's hostility toward gays and lesbians, it would be a mistake to give the Court another opportunity to establish constitutional law in this area, until the composition of its membership made a different result possible.

THE ROMER CASE
The second major case to reach the Court was Romer v. Evans (1996). In reaction to municipal ordinances in Denver, Aspen and Boulder, Colorado, a voter initiative (called 'Amendment 2') changed the state constitution to bar any state or local law from recognizing discrimination claims based on sexual orientation. A challenge to Amendment 2 was successful in the Colorado Supreme Court, whose decision the state asked the U.S. Supreme Court to review.

Writing for a 6-3 majority, Justice Kennedy focused on what was termed Amendment 2's 'unprecedented' breadth - namely, that it eliminated all possibility of legal protection for gays and lesbians, without reference to any specific governmental interest. The majority said that Amendment 2 'identifies persons by a single trait and then denies them protection across the board.' Because the law's 'sheer breadth is so discontinuous with the reasons offered for it,' the majority found the law 'inexplicable by anything but animus toward the class it affects[.]' Saying it was 'not within our constitutional tradition to enact laws of this sort,' the majority held that 'a law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is a denial of equal protection of the laws in the most literal sense.'

Like Bowers before it, Romer featured a biting dissent, this time from Justice Scalia, who derided the majority for 'mistak[ing] a Kulturkampf for a fit of spite.' Scalia believed that Bowers, which Amendment 2's challengers had not asked the Court to overrule and which the majority did not discuss or even cite, resolved the case in favor of the amendment's constitutionality. Following the logic of the post-Bowers appellate decisions - that the greater power to criminalize homosexual acts includes the lesser power to impose non-criminal burdens 'merely disfavoring homosexual conduct' - Scalia said that 'a fortiori' the state could take the step of disallowing itself and its local constituencies 'from bestowing special protections upon homosexual conduct.' Scalia viewed Amendment 2 as a battle in the 'culture wars,' aimed at 'counter[ing] both the geographic concentration and the disproportionate power of homosexuals' by requiring all debate about protections for gays and lesbians to take place at the statewide level. He called the Court's decision to void Amendment 2 'an act, not of judicial judgment, but of political will.'

THE BOY SCOUTS CASE
The Court's third and most recent case involving gays and lesbians presented the factual converse of Bowers. Whereas in that case Georgia law had been aimed at punishing gays and lesbians, the New Jersey law at issue in Boy Scouts of America v. Dale (2000) was aimed at protecting gays and lesbians. Specifically, the state supreme court had construed New Jersey's anti-discrimination law to prevent the Boy Scouts from discharging a scoutmaster, Dale, on the ground that he identified himself as gay. The Boy Scouts argued that its organizational philosophy expressed disapproval of homosexuals, and that the state law violated the group's First Amendment rights by requiring it to include a member whose status undermined its message. By a 5-4 vote, the Court upheld the Boy Scouts' position.

Writing for the majority, Chief Justice Rehnquist said that the right of groups to associate with members consistent with their message 'is crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas.' Reviewing such items as the 'Scout Oath' and 'Scout Law,' the latter of which requires members to be 'morally straight' and 'clean,' and the Boy Scouts' stated view that homosexuality was inconsistent with these values, the majority held that requiring the Scouts to retain Dale as a scoutmaster would burden its 'desire not to promote homosexual conduct as a legitimate form of behavior.' The New Jersey Supreme Court had held that the Scouts' mission was not to condemn homosexuality, but rather to abstain from taking a stand on any issues related to sex. The majority rejected this reasoning, holding that groups 'do not have to associate for the 'purpose' of disseminating a certain message in order to be entitled to the protections of the First Amendment. An association must merely engage in expressive activity that could be impaired in order to be entitled to protection.'

Writing for the four dissenters, Justice Stevens chastised the majority's decision to overturn New Jersey's efforts to 'replace prejudice with principle.' Reviewing the same scouting materials the majority had - including the 'Scout Oath,' handbooks and the like - Stevens thought it 'plain as the light of day' that they did not 'say the slightest things about homosexuality.' Terming the Scouts' views on any topic relating to sexuality as 'self-proclaimed ecumenism,' Stevens found it 'exceedingly difficult to believe that [the Boy Scouts] nonetheless adopts a single particular religious or moral philosophy when it comes to sexual orientation.' Based on his view that the Scouts failed 'to connect its alleged policy [against homosexuality] to its [actual] expressive activities' - beyond a position he believed was minted for the litigation - Stevens reasoned that the Scouts should not be permitted to use the First Amendment as a bar against the state's enforcement of its anti-discrimination law. Moreover, in light of the fact that Dale did not seek to use his scoutmaster's position to express any position on the topic of homosexuality, Stevens asserted that 'the only apparent explanation for the majority's holding, then, is that homosexuals are simply so different from the rest of society that their presence alone - unlike any other individual's - should be singled out for special First Amendment treatment.'

LOOKING AHEAD
The Court's decisions from Bowers to Romer to Boy Scouts do not chart a clear course for the future of constitutional litigation involving issues that directly affect gays and lesbians. Looking back over these cases and the contexts in which they arose, however, some observations emerge.

First, the Court's jurisprudence is notable in some respects for what it has not decided. In particular, the Court has not decided the issue that animated much academic and judicial discussion concerning equal rights for gay and lesbians over much of the last 20 years, namely, whether legislation targeting homosexuals as a class should receive 'heightened' or 'strict' constitutional scrutiny. Tracing to the Court's analysis of race-based classifications, much commentary and analysis has focused on whether gays and lesbians fall into the class of 'discrete and insular' minorities whose inability to protect themselves through the usual political process triggers increased constitutional protection. Law school hypotheticals and some lower court decisions have analyzed whether sexual orientation - like race, or national origin, or in some cases sex - is 'changeable;' whether it has been the target of historical discrimination and whether gays and lesbians have repeatedly been frozen out of the political process. The Court, however, has not come close to weighing in on this subject.

The lack of discussion in this regard may be explained, in part, by the fact that relatively few cases have been presented to the Court in which it could address the standard for reviewing classifications based on sexual orientation. The absence of opportunity, however, is hardly accidental. In the 1940s and 1950s, a team led by Thurgood Marshall adopted a legendary strategy of litigating slowly but steadily challenges to racial classifications, starting with challenges to legal education and culminating in the historic Brown v. Board of Education decision and its progeny eliminating de jure racial discrimination. The litigating strategy for gay and lesbian rights, in contrast, has been defensive; in many cases those challenging classifications based on sexual orientation have declined opportunities to seek Supreme Court review of negative decisions from the lower courts - undoubtedly out of fear that the Court would reduce constitutional protection even further than in Bowers. (It is notable, in this regard, that all three of the Court's major decisions involving sexual orientation have involved appeals by the side antagonistic to the claims of gays and lesbians.)

But while the Supreme Court has had relatively few occasions to address these issues, the nation at large has grappled with them, with a record that is mixed from the perspective of gays and lesbians. On the one hand, the public debate has seen some incremental movement in favor of expanded protections. Although some viewed Bowers as sanctioning public hostility toward gays and lesbians, the trilogy of decisions ends with the Boy Scouts case, which cast the group opposed to gay and lesbian rights as law violators and which essentially forced the group to declare publicly that it was bigoted against homosexuals. That declaration, in turn, has prompted some parents to withdraw their children from scouting, school boards in various parts of the country to bar the Scouts from having access to school grounds, and litigation against the continued expenditure of public funds for scouting-related activities. Likewise, the reaction to Amendment 2 was hardly limited to the Court's ultimate invalidation of the law; many groups organized boycotts of Colorado, which is heavily dependent on the tourism industry, thereby forcing the state's residents to feel the pain of its decision to adopt the law.

That said, gays and lesbians continue to experience discrimination that is unlikely to be remedied solely by public debate and political action. Further constitutional litigation is a certainty - from the congressional 'Defense of Marriage Act,' aimed at validating states that do not want to recognize others' recognition of same-sex marriages, to battles over the rights of gays and lesbians to adopt children, dispose of their property by will and to make fundamental decisions over life-and-death issues. It seems clear that, at some point in the not-too-distant future, the Court will be asked to reconsider the fundamental underpinnings of the Bowers decision. The question will not be (as the majority framed it in Bowers) whether states may ban 'homosexual sodomy,' but whether a state may justify targeted discriminatory decisions (in contrast to the wholesale exclusion at issue in Romer) on continuing animus toward gays and lesbians. The Court's decisions to date - with deep and bitter divisions - may suggest only that the answer will depend largely on when the matter is presented, and who will be on the Court to decide.

ABOUT THE AUTHOR
The authors are litigators at Munger, Tolles & Olson, San Francisco, and are frequent Bulletin contributors. Their articles also appear in The San Francisco Attorney.

2002 Jeff Bleich and Kelly Klaus


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