Last edited: January 03, 2005

Pride and Privacy

As the Supreme Court prepares to hear a landmark gay-rights case, advocates debate strategy

Boston Globe, March 2, 2003
Box 2378, Boston, MA 02107
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By Kristin Eliasberg

On March 26, the Supreme Court will hear the case of John G. Lawrence and Tyron Garner, two men convicted of having sex in Lawrence’s Houston, Texas home. Texas is one of four states where it is a crime for members of the same sex to engage in sodomy, which is defined by the state as oral or anal sex between members of the same sex.

If the Court were to declare the Texas statute unconstitutional—and that’s still an if—gays and lesbians could no longer be defined as criminals in any state of the union. But if not criminals, then what? Second-class citizens? Members of a beleaguered minority? Or men and women enjoying the same rights and status as heterosexuals?

This is one of the most important civil rights cases to come before the court in recent years; it’s certainly the most important gay-rights case. Gay-rights advocates and scholars are united in their desire to see the Court reconsider its own decision in Bowers v. Hardwick, the 1986 case in which it ruled that the right to privacy did not extend to homosexual conduct. But they are far from united in agreement on the best legal strategy to follow. If the Lambda Legal Defense Fund, which represents Lawrence and Garner, wins the case, then its lawyers’ choice of arguments could profoundly influence how we view homosexuality, politically and socially as well as legally, for years to come.

There are three possible ways to argue that the Texas statute is unconstitutional.

The first, perhaps the easiest, is to claim the statute violates the right to privacy. Though no such right is enumerated in the constitution, the Bill of Rights has been presumed to include the right to make intimate decisions without state interference at least since 1965, when the Supreme Court struck down a Connecticut law criminalizing the use of contraceptives. Subsequent cases, among them Roe v. Wade, enlarged on the idea of the sanctity of the “marital bedroom” to include other kinds of family-related activities and decision-making, whether or not they take place in the home.

The plaintiff’s argument in Bowers v. Hardwick—which, like Lawrence v. Texas, involved two adults in the home—emphasized the right to privacy. But there the court rejected that argument, ruling that the right to privacy did not extend to “morally reprehensible” activities such as sodomy, which lacked any connection to “family, marriage, or procreation.” In order to invalidate the Texas law on privacy grounds, the Court would probably have to overrule the precedent it established in Bowers, or find ways to distinguish that case from the current one.

A second argument claims the Texas law is unconstitutional because it discriminates on the basis of sexual orientation, unfairly criminalizing an activity that a heterosexual couple can legally engage in.

But unlike with race or gender, there are no real legal precedents forbidding discrimination on the basis of sexual orientation. True, in Romer v. Evans (1996), the Court struck down a proposed Colorado constitutional amendment that would have prevented homosexuals, lesbians, and bisexuals from making discrimination claims based on a “minority status.” But the court did not suggest that all discrimination on the basis of sexual orientation was by its nature improper. They restricted their decision to this particular amendment, saying it was motivated solely by “animus” and achieved no legitimate government purpose. While hailed as a victory for gay rights, Romer v. Evans left gays and lesbians in a categorical limbo between legally protected minority and legitimate object of discrimination.

A third possible argument would contend that anti-sodomy laws like the one in Texas discriminate on the basis of sex, not sexual orientation. In other words, they treat the sexes unequally, and are therefore unconstitutional. You can’t arrest John for the same activity (oral or anal sex with a man) that Jean is free to engage in. This argument, while logically convoluted, appeals in part because it occupies the more familiar ground of gender discrimination. It could also set the stage for the future legalization of gay marriage.

All of these arguments are theoretically and strategically viable, and the plaintiffs’ lawyers will no doubt combine them. But for gay-rights advocates, the question isn’t just which arguments will persuade the court, but which ones will lay the most desirable groundwork for future legislation and judicial decisions.

Some gay-rights activists emphasize that homosexuals are essentially the same as heterosexuals—and therefore should have the same rights as heterosexuals, including the right to marry. But others prefer to emphasize the distinctive position of gays in society, and focus on rights, like the privacy right, that ensure the freedom to live outside mainstream social norms.

UCLA law professor and former gay-rights lawyer William Rubenstein explains the difference in terms of “liberty arguments” and “equality arguments.” “Equality arguments are framed around issues of sameness, saying homosexuals are similarly situated as heterosexuals,” he said in an interview. “Liberty arguments are about difference—you have the liberty to do things that are idiosyncratic.”

Evan Wolfson, a gay-rights lawyer and executive director of the Freedom to Marry Collaborative, says the plaintiffs should follow the equality route, and emphasize the similarity between homosexual and heterosexual couples. “There’s been a very big change since Bowers v. Hardwick, where the Court was able to talk about gay people like something that crawled out from under a rock,” he said in a recent interview. “The last 16 years have shown that gay people have to do with family.”

Some advocates hope that the sea-change in the understanding of attitudes toward homosexuality since 1986 will help sway the court. After all, Justice O’Connor, seen as a crucial vote in this case, recently cited changing social mores when she reversed her position on executing the mentally retarded.

But some scholars worry that a broad argument characterizing the gay couple as a “family” deserving the same protection as heterosexual couples is one the current court will resist. Laurence Tribe, the Harvard law professor who argued the Bowers case, suggests leaving the family claim out altogether. “The right way to frame the issue is to recognize that the Texas law involved in the case has nothing to do with the long-recognized state power to define, regulate, and protect particular kinds of relationships like marriage or adoption,” Tribe said in an interview. “The law at issue involves only the asserted state power over casual or long-term encounters that don’t impact families.” The key question, Tribe asserts, should be “not what were Lawrence and his partner doing in that bedroom but what was Texas doing there.”

Tribe also points out that the court would not want to legitimize gay marriage, and therefore is unlikely to look favorably upon a sex discrimination argument. Many in the gay-rights movement agree. Even Northwestern law professor Andrew Koppelman, the scholar who has done the most to develop the argument that anti-sodomy laws constitute unconstitutional sex discrimination, admits that the idea of establishing a precedent for same-sex marriage “might scare the Court.”

Yale law professor Kenji Yoshino offers another reason for stepping back from the sex discrimination argument. He points out that since gay men and women don’t perceive themselves as being discriminated against as men or women, it goes against common sense to argue that this is what anti-sodomy laws do: “The whole idea of gay civil rights is that it is something different from sex discrimination.”

Edward Stein, a professor of law at Cardozo School of Law, suggests that an argument based on the idea that the Texas law discriminates by sexual orientation would be strategically superior. “The Romer court said singling out a group of citizens and branding them as second-class goes against the tradition of this country,” he says. Stein acknowledges that the Court stopped short of declaring homosexuals a “protected class” in discrimination cases, but he believes its argument that the Colorado law was motivated solely by “animus” against homosexuals also applies in this case.

Of course, to those who think the law should be upheld, all these approaches have basic weaknesses. Professor Lynn Wardle of J. Reuben Clark Law School at Brigham Young University argues that the only reasonable outcome of the case would be for the Court to reiterate that whether or not to regulate sex outside marriage is a matter the states, not the judiciary, should decide.

“Even in the activist days of Warren and Burger courts,” he said recently, “there’s enormous dicta saying this is the legislature’s bailiwick, not ours. Of course the Court did strike down anti-miscegenation laws, but those were discrimination on the basis of a category we fought a civil war to abolish. The legislatures may pay attention to political trends, but courts don’t need to.”

Many advocates agree that it’s these political trends, not the legal arguments, that count. Brooklyn Law professor Nan Hunter commented recently that disputes about different approaches may not in fact amount to much. “I’m not saying it’s unimportant how people argue,” she said. “Winning the case on any basis will signal that an enormous shift in public opinion has already happened, and open a space for much more progressive change. Those things operate outside of legal doctrine.”

What the court does do, though, is affect the pace and direction of change. Society has unquestionably become more accepting of homosexuality in the years since the Bowers decision, and this progress is almost certain to continue. But where it will take us, and how fast, may be determined when arguments begin on March 26.

  • Kristin Eliasberg has written about legal issues for The New York Times, The Chicago Tribune, and The Nation.

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