The Tradition of Prejudice Versus the Principle of Equality: Homosexuals and Heightened Equal Protection Scrutiny After Bowers v. Hardwick

Abstract

"We believed in the Constitution. Guess what? It doesn't mean us."

Lesbian activist Pat Norman after Bowers v. Hardwick.

Pervasive prejudice, unfounded stereotypes, and invidious public and private discrimination severely victimize gay males and lesbians in the United States. Through violence and discrimination, society robs those it perceives to be homosexual of the liberty to pursue a meaningful and happy life without fears State and federal institutions, in the executive, legislative, and judicial branches, are prime instigators and facilitators of this invidious discrimination. This governmental discrimination impairs homosexuals' ability to be employed, to raise children, to live together as couples, and to engage in consensual, private, sexual activity.

The courts have generally rebuffed attempts by homosexuals to seek redress through statutory and constitutional claims. In 1986, the United States Supreme Court, reasoning that the ability to engage in homosexual conduct was not an interest protected by the federal constitutional right of privacy, held in Bowers v. Hardwick that states could criminalize same-sex sodomy. As a result of the apparent exclusion of homosexuals from substantive due process protections, homosexuals increasingly are challenging governmentsponsored discrimination through the equal protection principles contained in the fifth and fourteenth amendments of the United States Constitution.

The principle of equal protection of the laws requires that the government treat all persons equally and fairly, and not invidiously or arbitrarily. Although the courts usually only require the government to provide a rational justification for classifications, the courts subject certain classifications to heightened scrutiny because of a presumption that the government classified invidiously. The courts establish this presumption when a class faces pervasive societal antipathy and political powerlessness because of traits that do not relate to individual responsibility or capabilities.

This note examines whether, consistent with equal protection precedent, and in light of Hardwick, the courts should presume that the government classifies homosexuals for invidious or arbitrary reasons that the constitutional principle of equal protection prohibits. Section I examines the prejudice, stereotypes, and discrimination that homosexuals in the United States face, with particular attention to government-sponsored discrimination and its consequences for the lives of homosexuals. Section II discusses the principle of equal protection as it has developed since the ratification of the fourteenth amendment, concentrating on the criteria that the Supreme Court has articulated for determining whether a class requires heightened protection because the government presumably disadvantages it invidiously. Section III first discusses Hardwick, followed by recent federal court decisions that have considered whether homosexuals constitute a class needing heightened judicial protection. Section IV then argues that homosexuals fulfill the criteria for status as a protected class under equal protection precedent, and that those courts that have relied on Hardwick to hold that the courts should not protect them have used reasoning that is superfluous and even antithetical to equal protection jurisprudence.