ON MAY 1, 2003, Supreme Court Justice Sandra Day O’Connor addressed the students at Gonzaga College High School in Washington, D.C. Following her prepared remarks, O’Connor was asked the following question: “[For] much of the 20th century, race was a burning issue facing the courts. Could you conjecture what the burning issue might be for the 21st century?” Her reply went largely unnoticed by the press, but it was stunning:
Well, I don’t know that we’ve solved everything on the racial issue, in fact I know we haven’t because we have cases this term dealing with affirmative action and higher education so those issues remain with us in this country. And will there be additional? Yes, I think we see issues cropping up around the country relating to how [pause]homosexuals are treated, for example, legally, and we see a number of cases in that area.
Only six weeks earlier, the Supreme Court had heard oral arguments in Lawrence v. Texas, the closely watched challenge to Texas’s same-sex sodomy law. If gay rights were slated to be a burning issue of the 21st century, no one knew better than Justice O’Connor that the Supreme Court was doing its part to fan the flames. When it handed down its decision in June, not only did it strike down the Texas statute, but—in an opinion of such breathtaking scope that it stunned even the most optimistic gay rights advocates—the Court overturned its notorious holding in Bowers v. Hardwick. As O’Connor had predicted, the burning civil rights issue of the 21st century had just ignited. From Scalia’s dissent and the howls of protest coming from the Right, one would think that the Supreme Court had just legalized gay marriage. On the contrary, both Kennedy writing for the majority and O’Connor writing for herself were careful to distinguish a law that imposed criminal penalties on homosexuals from laws that would grant formal legal recognition to their relationships. But Scalia and the religious Right are justified in their anxiety over the implications of Lawrence.
John Lawrence and Tyron Garner had appealed their convictions based on two different theories, both grounded in the Fourteenth Amendment to the Constitution, which states that no state shall “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 sodomy statute could have been declared unconstitutional under either theory—due process or equal protection—which is not to say that they are legal equivalents. A central issue pertaining to both theories is what’s called the “standard of review.” How high—or low—is the hurdle that a challenged law must overcome in order to survive a constitutional challenge? Due process and equal protection handle the “standard of review” question in different ways, and so the choice of theory has major implications for future gay rights cases.
The very first word in Justice Kennedy’s opinion signaled which theory the majority had chosen: “liberty,” not “equality.” Some have expressed disappointment that the decision was not based upon equal protection. After all, wasn’t the primary issue whether homosexuals would be equal to their heterosexual counterparts in the eyes of the law? But legal equality is not so straightforward. The Constitution does not guarantee that people are created equal. That was the Declaration of Independence, and it spoke only of men. The Constitution prohibits the government from making laws that improperly discriminate among categories of people. The history of civil rights in the United States is largely the history of how the Equal Protection Clause has been invoked to protect minority rights. The strongest applications of equal protection theory have been in the areas of race and national origin: race because of our history of enslaving blacks, and national origin because of our history of confining American citizens of Japanese descent following the attack on Pearl Harbor.
Race and national origin are instances of what the law calls “suspect classifications” or “protected categories” of persons. These are legal terms of art that control the way a court looks at a law that treats different groups of people differently. The kind of scrutiny the law must submit to is called “standard of review.” Laws that disadvantage a suspect class are subjected to the highest level of review, called “strict scrutiny.” Homosexuals are not a suspect class in this country; laws that disadvantage them are not subject to strict scrutiny. When a black man challenges a law under equal protection, the courts ask whether the law serves a compelling government interest and whether there is any less restrictive way of meeting the government’s goals. When a gay man challenges a law under equal protection, the courts ask only whether the law is rationally related to a legitimate government interest. Such a standard is far more friendly to the challenged law.
Consequently, unless the Supreme Court was prepared to declare that from now on homosexuals would be a suspect class in this country, akin to race, an equal protection ruling would have had a limited effect upon gay rights. The only sodomy statutes that would be rendered unconstitutional were those that applied exclusively to homosexuals. That would have taken care of laws in Texas, Oklahoma, Missouri, and Kansas. The rest would have remained on the books because they criminalized sodomy no matter who engaged in it. Overturning the Texas statute by way of a due process analysis, however, had the effect of striking down all of the sodomy laws in this country, not just some of them. That was the first advantage of using due process. Getting rid of Bowers was the second.
Even though Georgia’s sodomy statute had been struck down by the time Lawrence reached the Supreme Court, the Bowers decision, which was based upon due process, remained in force. It continued to be relied upon in various types of cases throughout the country. In fact, the Texas courts had relied upon it in denying Lawrence’s appeal of his conviction. The facts in Lawrence were strikingly similar to the facts in Bowers: in both cases, a police officer found his way into the bedroom, discovered two men having sex with one another, and charged them with violating the sodomy statute. It would have been an odd result indeed that struck down the Texas statute and left Bowers standing. The only way to overrule Bowers was by way of the Due Process Clause.
MOST of the safeguards the Constitution imposes between the individual and the state have their source in specific language in the Constitution, most of it in the Bill of Rights. But there are some rights—privacy is an excellent example—that most people agree should be protected but about which the Constitution has nothing explicit to say. In Griswold v. Connecticut (a case involving contraception and one upon which the Lawrence court relied), Justice Douglas famously opined that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” At their most receptive, judges view a penumbra of an emanation with some skepticism; at their most hostile, they speak of “emanations and penumbras” with derision.
For reasons that go back to the 19th century, substantive rights not made explicit elsewhere in the Constitution have come to be attached to the Due Process Clause of the Fourteenth Amendment. That is why lawyers speak tautologically of “procedural due process” and oxymoronically of “substantive due process.” In its procedural garb, the Due Process Clause guarantees that the government may not deprive you of life or liberty or property without giving you some kind of procedure whereby you can challenge the threatened deprivation. In its substantive garb, the Due Process Clause guarantees that the government cannot interfere with an individual’s fundamental liberty interests. Perhaps as a way of avoiding the “emanations and penumbras” problem, the Lawrence court styled the petitioners’ right to privacy as a liberty interest grounded in the Fourteenth Amendment’s Due Process Clause.
The Lawrence decision held that a homosexual has a substantive due process right to liberty that the state may not intrude upon; that the liberty interest in this case was private, consensual sexual conduct; and that the state had no legitimate interest that would justify criminalizing that conduct. In its narrowest sense, Lawrence stands for the proposition that the state may not criminalize private, consensual homosexual sex. But most states had already repealed or struck down their sodomy statutes, and striking down those few that remained should not have been such a big deal. A legal decision often has a subtext as well as a literal text. Lawrence isn’t simply about striking down one of the last of the sodomy statutes. If it were, O’Connor’s equal protection theory would have sufficed. What the subtext of Lawrence is about is marriage. It’s not the question the Court addressed directly, as it hastens to remind us: “[This case] does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Yet, as Scalia writes (correctly, in my opinion), the decision “call[s]into question” laws against same-sex marriage and makes them more vulnerable to a legal challenge.
Supreme Court jurisprudence has traditionally used substantive due process to protect only those rights that are “fundamental”—a term of art that defines the nature of the protected interest and the level of scrutiny that is applied to laws that interfere with it. Fundamental liberty interests protected by the Due Process Clause will trigger strict scrutiny, the same high standard of review that suspect classes enjoy under equal protection. This type of analysis cannot benefit homosexuals, who do not constitute a protected category. What the Lawrence majority declared was at issue is some kind of liberty interest that goes beyond anal sex. In 1986, when the Bowers court considered Michael Hardwick’s challenge to the Georgia sodomy statute, it framed the issue in this way: “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy.” The Lawrence court has this to say about that characterization:
That statement, we now conclude, discloses the [Bowers] Court’s own failure to appreciate the extent of the liberty interest at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. [Sodomy] laws … 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.
This does not mean that Lawrence confers upon homosexuals the fundamental right to sodomy that the Bowers court scoffed at. The Lawrence court doesn’t address that question head on. Lawrence is less interested in sodomy than in the relationship between two people who engage in it, and this is what makes the decision so heartening to gay rights advocates and so disconcerting to the religious Right. Due process is the theory that the Supreme Court has used to protect personal decisions relating to marriage, procreation, contraception, family relationships, and child rearing. Justice Kennedy writing for the majority places this case squarely within that tradition, not only by tracing its lineage back through Carey, Roe, and Eisenstadt to Griswold, but by speaking respectfully of the dignity of gay relationships and disapprovingly of laws that demean them. When Kennedy says that this case “involves liberty of the person both in its spatial and more transcendent dimensions,” he means that it’s about sexual practices and equally about the “personal bond that is more enduring,” one that is, by implication, not unlike marriage.
Is the substantive due process liberty interest that Lawrence protects a “fundamental” one that will trigger strict scrutiny? No one knows. Those who voted to strike down the sodomy statute agreed that it could not survive even the most lenient kind of review, and so there was no occasion to establish what a heightened level of scrutiny might look like when applied to the sort of interest the majority describe. Scalia takes refuge in pointing out that nowhere does the majority “declare that homosexual sodomy is a ‘fundamental right,’” but this is irrelevant. However narrow its legal holding, Lawrence will come to stand for the proposition that homosexuals have a substantive due process liberty interest in their relationships. This is a seismic shift in the terrain that Scalia predicts will cause “a massive disruption of the current social order” and have “far-reaching implications.” For once, I agree with him.
Jo Ann Citron, currently teaching in the Women’s Studies Department at Wellesley College, is writing a book about the formation and dissolution of alternative families.