SEXUAL ORIENTATION (Update)

Despite significant legal and social advances in the last half of the twentieth century, lesbian, gay, and bisexual people in the United States still suffer rampant discrimination on the basis of sexual orientation. Discrimination at the hands of private individuals and organizations because of sexual orientation ranges from refusals to employ to violent attacks. But government itself officially commits much sexual orientation discrimination. Lesbian, gay, and bisexual people have been fired from teaching positions, discriminated against in custody and adoption decisions, excluded from government employment, and denied the right to marry the persons they love—all because of their sexual orientation. This direct governmental participation in the maintenance of a symbolic yet tangible second-class status, an official stigma, calls into question the depth of our national commitment to the egalitarian ideal reflected in the declaration of independence and in the Constitution's guarantee of equal protection of the laws.

Perhaps the most commonly invoked legal justification for anti-homosexual discrimination and stigmatization are sodomy laws and the Supreme Court's decision in bowers v. hardwick (1986). In Bowers, a 5–4 Court upheld, insofar as two persons of the same sex were concerned, a Georgia law making oral and anal intercourse a felony punishable by imprisonment for up to twenty years. The majority opinion cursorily dismissed the argument that the law violated the right of privacy that had been recognized within the doctrine of substantive due process.

Despite the overwhelmingly negative academic evaluation of Bowers as a constitutional decision, lower courts in the years since have relied on it frequently to reject equal protection challenges to governmental discrimination based on sexual orientation, especially challenges to the exclusion from the armed forces. Bowers, however, explicitly addressed a substantive due process issue, and the majority opinion had expressly disclaimed considering whether Georgia's practice of applying its sodomy law (which, in terms, applied to people regardless of the parties' sexes) solely to same-sex couples, violated the equal protection clause. Numerous courts—although not all—have nonetheless concluded that Bowers all but forecloses successful equal protection challenges to governmental antigay discrimination because it upheld criminal penalties for "the conduct" that is said to "define" the class of persons subject to discrimination.

Of course, oral and anal intercourse are just two of a myriad of ways in which two persons might express mutual affection or attraction, and heterosexual as well as lesbian, gay, and bisexual persons engage in such intercourse. Moreover, many commentators have argued that the history of criminal laws on which the Bowers majority relied for its due process holding does not conclude all equal protection questions concerning sexual orientation discrimination. In particular, Bowers does not determine what level of scrutiny is warranted by governmental action on the basis of sexual orientation.

The Supreme Court has issued only one decision on the merits of a sexual orientation equal protection claim, and romer v. evans (1996) does not resolve the appropriate level of scrutiny. In concluding that a Colorado state constitutional amendment that made it more difficult for lesbian, gay, and bisexual persons to seek statutory protection from discrimination violated the equal protection clause, the Court held that the amendment did not even satisfy rational basis review, the lowest level of equal protection scrutiny. The Court thus had no need to determine whether discrimination on the basis of sexual orientation is properly subject to intermediate or strict scrutiny.

Even though they have not generally prevailed in the lower courts, judges and scholars who believe that governmental discrimination on the basis of sexual orientation warrants heightened judicial scrutiny make a number of persuasive arguments. Gay, lesbian, and bisexual individuals have historically suffered and still do suffer from pervasive discrimination, and thus the very costs of "coming out" seriously impair the prospects of achieving equality solely through the political process. People's sexual orientation is irrelevant to virtually any consitutionally significant capacities, such as the ability to be a loving parent or to follow a commander's orders. Moreover, to the extent that, however misguidedly, Supreme Court case law treats immutability of a personal characteristic as a relevant criterion in equal protection analysis, sexual orientation should count as immutable. Even if there are some people who might be able to change the direction of their emotions and attractions, a great many lesbian, gay, and bisexual persons experience their sexual orientation as beyond their control (some despite expensive and often painful efforts to become heterosexual). There is also both no way to know whether a given person might be that rare individual who could conceivably change orientations, and little or no justification for demanding that people try to so reconfigure their psyches. In short, the usual indicia of suspect classifications are present in these cases.

In addition, some scholars and lower courts in state law cases have concluded that discrimination against lesbian, gay, and bisexual persons may constitute sex discrimination, subject to heightened equal protection scrutiny. The formal argument notes that sexual orientation is defined by the sex of the parties involved; the critical difference between, for example, a gay man and a heterosexual woman is their sex—for both are attracted to men. Thus, in this case, the same attractions and desires that are permissible or even celebrated when expressed by a woman become a basis for discrimination when expressed by a man. This is formal sex discrimination requiring "an exceedingly persuasive justification" under precedents such as united states v. virginia (1996). A more functional argument contends that discrimination based on sexual orientation reinforces a patriarchal ideology in which women are deemed the only fit objects of sexual penetration, inferior to men and incomplete without them, and that such discrimination serves outmoded gender roles and hence is presumptively unconstitutional.

Despite the forceful equal protection arguments in favor of heightened scrutiny for sexual orientation classifications and governmental recognition of samesex marriage, it seems unlikely that courts will rush to insist that lesbian, gay, and bisexual people not be denied the full measure of equality. In time, however, it may well be, as one lower federal court confidently predicted in Nabozny v. Podlesny (1996), that " Bowers will soon be eclipsed in the area of equal protection by the Supreme Court's holding in Romer v. Evans " and that our governments will get out of the business of stigmatizing their citizens on the basis of sexual orientation.

David B. Cruz
(2000)

(see also: Marriage and the Constitution; Same-Sex Marriage; Sexual Orientation and the Armed Forces.)

Bibliography

Cruz, David B. 1999 Controlling Desires: Sexual Orientation Conversion and the Limits of Knowledge and Law. Southern California Law Review 72:1297–1400.

Halley, Janet E. 1989 The Politics of the Closet: Towards Equal Protection for Gay, Lesbian, and Bisexual Identity. UCLA Law Review 36:915–976.

——1994 The Politics of Biology: A Critique of the Argument from Immutability. Stanford Law Review 46: 503–568.

Karst, Kenneth L. 1995 Myths of Identity: Individual and Group Portraits of Race and Sexual Orientation. UCLA Law Review 43:263–369.

Koppelman, Andrew 1994 Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination. New York University Law Review 69:197–287.

Law, Sylvia A. 1988 Homosexuality and the Social Meaning of Gender. Wisconsin Law Review 1988:187–235.

Richards, David A. J. 1998 Women, Gays, and the Constitution: The Grounds for Feminism and Gay Rights in Culture and Law. Chicago: University of Chicago Press.

Rubenstein, William B. 1997 Cases and Materials on Sexual Orientation and the Law, 2nd ed. St. Paul, Minn.: West Publishing Co.

Sunstein, Cass R. 1988 Sexual Orientation and the Constitution: A Note on the Relationship Between Due Process and Equal Protection. University of Chicago Law Review 55: 1161–1179.