WHAT IS THE MEANING of Lawrence v. Texas for future gay rights litigation? Removing the stigma of criminality from gay relations will undoubtedly be helpful in an array of cases, although it is well to remember that statutes other than sodomy laws have contributed to such stigma. The decriminalization of sodomy in Illinois in 1962 did not suddenly liberate the gay people of that state from oppressive state policing of their sex lives. The Model Penal Code—which Illinois was the first state to adopt—legalized consensual, private sex between adults, but still provided criminal penalties for “soliciting” somebody to engage in “deviate sexual intercourse,” and such laws had long been the main vehicle for law enforcement to crack down on gay meeting places and arrest gay men (and some women).
Even in the post-Lawrence world, such laws still bedevil gay people. For example, on August 6, 2003, the California Third District Court of Appeal upheld the decision by the California Real Estate Commissioner to deny a real estate broker’s license to a gay man on morality grounds because he had twice been arrested for soliciting a plainclothes police officer to engage in “deviate sexual intercourse” in a public restroom. The statutes under which such arrests take place are not specifically anti-gay statutes, but they are clearly enforced as such, since plainclothes police officers generally do not lurk about public restrooms enticing heterosexuals to solicit them for sex and then arresting them. Forty years ago, a California appellate court took judicial notice of research showing that those arrested under such laws were almost exclusively men seeking sex with men.
On the broader gay rights agenda, what does Lawrence mean for same-sex marriage? for gay parental rights to custody, visitation, or adoption? for an end to discriminatory treatment under immigration laws, tax laws, public benefits laws such as Social Security, military regulations?
The Supreme Court provided a hint when, shortly after announcing its opinion in Lawrence, it took action in the pending case of Limon v. Kansas. Matthew Limon, eighteen years old at the time of his arrest, had received a seventeen-year prison sentence for initiating sexual contact with a fifteen-year-old male when both were residents of a state group home. Under Kansas law, if Limon’s sex partner had been female, the penalty would have been minimal by comparison. The ACLU argued that this violated Limon’s constitutional rights. The Kansas courts disagreed and upheld the sentence, finding that the state could rationally impose harsher penalties for homosexual contact between an “adult” and a “minor.” The Supreme Court granted Limon’s petition, vacated the Kansas ruling, and sent the case back for reconsideration “in light of Lawrence v. Texas.” On the one hand, this case seems closely analogous to Lawrence in that the Kansas statute, like the Texas law, specifically targets gays for harsher penalties. But it is unlike the Texas law in that Kansas still imposes criminal penalties on straight intergenerational sex, just lesser ones, whereas the Texas law allowed heterosexuals to have anal or oral sex without penalty.
What is the Court trying to signal here, that the “liberty” interest identified in Lawrence may extend to intergenerational sex? This seems improbable. More likely, the Court is trying to signal that Lawrence, viewed in the context of prior cases, including Romer v. Evans—which struck down Colorado’s highly discriminatory “Amendment 2” back in 1996—signals that moral disapproval of homosexuality may no longer be the basis for a state’s differentiating between same-sex conduct and opposite-sex conduct. That is to say, a majority of the Court may, despite Justice Kennedy’s disavowal, see Lawrence as incorporating an Equal Protection component in its holding, as a logical extension of its due process holding.
What might this mean for the other heavily contested issues in gay rights? Is Justice Scalia correct in arguing that Lawrence severely undermines the case against same-sex marriage, or is Justice O’Connor correct in asserting that the state’s interest in “preserving the traditional institution of marriage” may be enough of a legitimate, nondiscriminatory reason to withstand the “more searching” judicial review that she finds appropriate for state policies that “inhibit personal relationships”? O’Connor might argue that the denial of marriage to same-sex couples does not “inhibit” their personal relationships, as striking down the sodomy law allows them to have sex and live together in a joint household free of any state interference, and the disadvantages they suffer by being excluded from marriage are incidental and unintended consequences of the state’s desire to nurture a historically-sanctioned opposite-sex relationship. (One presumes that the Supreme Court’s Lawrence majority would find unconstitutional such statutes as the Virginia law against “cohabitation,” which has been applied against opposite-sex couples living together without benefit of marriage, as violating the same “liberty” right identified in Lawrence. Would O’Connor find it unconstitutional? Maybe not.)
And what about military service? Clearly, the 1993 enactment of the “don’t ask, don’t tell” policy was specifically motivated by a desire to keep openly gay people out of uniformed military service. The articulated justification—to promote unit cohesion and morale—is not based on moral disapproval by the legislature but rather on the contention by military commanders who testified before Congress that the presence of openly gay personnel would undermine the military mission, because other service members could not (would not?) be able to bond with gay co-workers as fellow warriors. The key question under Equal Protection theory is the degree of skepticism that a Court may (or should) bring to evaluating this contention. If anti-gay discrimination, especially when it’s intentional rather than incidental, is in some sense suspect, then the government should have to do more than just make this contention, which has never been backed up by any credible social science research and is belied by the experience of many of our major military allies who have ended the gay ban for a decade or more. Of course, the traditional judicial deference to military “expertise” in personnel matters gets in the way of a pure Equal Protection analysis as well.
What could Lawrence mean for the parental rights of gay people? In some jurisdictions judges had routinely cited sodomy laws to cast gay parents into inferior positions in custody and visitation disputes, regardless of their comparative merits as desirable custodians or role models for their children. (One Florida judge thought that a father who was a murder convict was automatically a more desirable parent than a lesbian mother, for example, even though sodomy was a mere misdemeanor in Florida while homicide was still a felony, the last we heard.) The removal of sodomy laws takes away that rationale. But what about the judges who find it preferable for children not to be placed with parents who are the subject of community moral disapproval, or judges who continue to see homosexual relationships as “illicit” even in jurisdictions where sodomy laws have long since been repealed or invalidated, or judges who believe that children are better off with a heterosexual parent who has remarried and can give the child a home with a traditional opposite-sex parental dyad as role models? What about all the judges who will allow a gay parent to have visitation only if their same-sex partner is excluded from any contact with the child? Would Justice O’Connor’s “more searching” judicial review be relevant here, when the issue is not a statute specifically disadvantaging gay people but rather judicial attitudes deployed in the exercise of relatively unsupervised “discretion” in a system where appellate courts are generally loathe to second-guess the front-line decision-makers? The Supreme Court has yet to take on a gay parenting dispute of any type, and its failure to confront the Equal Protection doctrinal issue in Lawrence forestalls the day when we can confidently answer that question.
Finally, what does Lawrence mean for the eventual fate of the Defense of Marriage Act (DOMA), the mean-spirited statute passed by Congress in 1996 in an election-year frenzy of reaction against the looming possibility that Hawaiian courts might rule in favor of same-sex marriage? (Just months after DOMA was passed, their worst fears seemed to come true when a Hawaii trial judge ordered the state to issue marriage licenses to three same-sex couples, but the ruling was forestalled and the people of Hawaii amended their constitution to overrule it.) Here is a law that surely would merit “searching review” from Justice O’Connor, in light of its legislative history. Does Congress have a legitimate interest in “defending” the “traditional institution of marriage” against same-sex partners who might be married in Canada (or Massachusetts), civilly united in Vermont, domestically-partnered in California, reciprocally-beneficiaried in Hawaii, seeking equal treatment under federal immigration, tax, or benefits laws, when DOMA was clearly passed for the valuable political purpose of going on record against gay equality? These remain open questions.
Lawrence v. Texas could have been the vehicle to begin addressing many of these concerns, but the way in which Justice Kennedy wrote the Court’s opinion falls short of providing a clear roadmap for analyzing the constitutional questions. Justice Scalia’s frustration at the lack of clear constitutional analysis in the opinion is understandable from this perspective. It is hard to hit a target that lies concealed behind mist and generalizations about “liberty.” Perhaps Kennedy concluded, as a strategic matter, that in such an emotionally charged case it was best to “keep ’em guessing,” and that’s where he has left us.
Arthur S. Leonard is a professor at New York Law School.