FindLaw's Writ - Lehman: Does Discrimination Against Gay Men and Lesbians Count As Sex Discrimination?: Tomorrow, March 26, the United States Supreme Court will hear oral arguments in Lawrence v. Texas, a case based on the criminal conviction of two men who engaged in homosexual conduct (each was fined $200). They appealed their convictions, arguing that the Texas anti-sodomy law violated the Due Process and Equal Protection Clauses of the U.S. and Texas Constitutions. The media coverage of Lawrence has been intense - second only to the upcoming case on affirmative action. But this coverage has both over- and underestimated Lawrence's significance to gay rights, by only stressing the Due Process challenge to the law, the resolution of which will ultimately have limited practical impact. At the same time, the media has largely ignored the much more significant Equal Protection challenge. If the Supreme Court addresses this argument, Lawrence stands to be one of the most important civil rights cases of the modern era. In other words, what has been largely portrayed in the media as a case about privacy, could actually turn out to be a far-reaching advance--or setback--for equality.
Which is why the Court, regardless of which way it decides, will almost certaily rely on the Due Process clause and explicitly decline to visit the Equal Protection clause. If they can reach their desired result in a less expansive way, they will.
The other reason that the Court will decline to visit the Equal Protection clause is that if they overturn the Texas law on equal protection grounds due to sex discrimination, they will be laying explicit foundations for overturning the various Defense of Marriage Acts and allowing homosexual marriage. However liberal minded some justices on this court may be, that is one place I'm quite certain that they do not want to go.
When the statute was first challenged in state court, a divided three-judge panel of the Texas Court of Appeals in Lawrence struck down the law though under the Texas Constitution's, not the U.S. Constitution's, Equal Protection Clause. (Both were used as bases for challenging the statute.) "The simple fact is," Justice Anderson wrote for the majority, "the same behavior is criminal for some but not for others, based solely on the sex of the individuals who engage in the behavior. In other words, the sex of the individual is the sole determinant of the criminality of the conduct." Upon this logic, the panel concluded that the statute turned on a sex-based classification of the defendants. As Professor Andrew Koppelman has forcefully argued for well over a decade, discrimination against gay men and lesbians is sex discrimination. Accordingly, the Texas court applied a heightened scrutiny, and concluded that because the state had failed to show that the statute promoted any compelling state interests, it was unlawful under the Texas Constitution. In fact, the same reasoning would have called for heightened scrutiny under the U.S. Constitution, but the court found it unnecessary to use that basis because it had found that the law violated the state's constitution. Upon rehearing by an en banc panel (that is, a larger panel of the same court), the Texas Court of Appeals reversed the original panel's ruling with the two judges from the original panel dissenting. The en banc panel's majority held that the law did not constitute sex discrimination. Instead, it held that the law, at most, discriminated on the basis of sexual orientation, and went on to apply the lowest standard of review - the rational basis test - under the U.S. and Texas Constitutions.
It is baffling to me how the Texas court could not see that the law punishes conduct based on the sex of the person, and not sexual orientation.
Look at it this way: it isn't unusual, especially when young, for straight men to experiment with sex with other men. So, let's say that Straight Guy A, living in Somesmalltown, Texas, gets seriously drunk one night, and starts fooling around with Straight Guy B. No big whoop, and under normal circumstances, they'd do it, decide that maybe this wasn't their thing, and go on with the rest of their lives. But in this case, because they were seriously drunk, they got seriously loud and disruptive, and their neighbors called the police. Said police arrive just as Straight Guy A and Straight Guy B have various and sundry bits of each other in places where Texas law says they ought not to be. They're arrested, charged with disturbing the peace and sodomy. In this case, what is punished is conduct due to sex of the people involved -- if Straight Guy A was doing the same thing with His Female Wife C, it would be entirely legal. Thus, prima facie sex discrimination.
The Court, somehow, strikes me as entirely unlikely to head that way. I suspect, eventually, we will see a bitterly divided 5-4 decision in favor of the state of Texas, on the grounds that due process was not denied, and the Court will decline to visit the equal protection argument, as they were able to decide the case on other merits.
Interestingly, it appears that in the original, infamous Bowers v Hardwick case, The Court may well have misinterpreted the historical record:
Sodomy Flaw: How the courts have distorted the history of anti-sodomy laws in America. By Kristin Eliasberg (Slate, Posted Tuesday, March 25, 2003, at 3:00 PM PT): .....If the purpose for these laws (or, in anti-discrimination parlance, the "compelling governmental interest" justifying singling out a specific group for prosecution) was the need to populate the new world, then one can argue they are obsolete, as the government surely no longer has that interest. Moreover, although laws suppressing non-procreative sex have existed for much of the past millennium, singling out only homosexual sex for suppression is, according to the Lawrence historians, "an unprecedented project of the twentieth century." At the time of the Founders, they argue, and until the late 19th century, the concept of "homosexuals" as a distinct legal category of person didn't even exist. The word itself doesn't make an appearance in the American lexicon until 1892. If the first lawmakers didn't recognize homosexuals as a distinct category of person, they couldn't have designed laws specifically aimed to suppress them, even if they did criminalize certain same-sex behaviors along with other non-marital, non-procreative behaviors.
Posted by iain at March 25, 2003 05:04 PMComments
