31

One can imagine a right to privacy or personal autonomy that encompasses much more than contraception and abortion. After all, both Meyers and Pierce v. Society of Sisters­—key precedents for Griswold and Roe—dealt with parental control over their children’s education rather than sexuality. In at least two post-Roe cases, the Court applied substantive due process in ways that seemed to expand Griswold beyond sexual and reproductive autonomy:

• In Moore v. East Cleveland (1977), the Court struck down a city zoning ordinance that limited occupancy in a particular neighborhood to “families,” using a limited definition of that term that only permitted parents and their immediate children. In ruling for Moore—a grandmother who lived with her son and two grandchildren—a plurality of the Court wrote that the zoning ordinance violated the integrity of the family without any legitimate countervailing state interests.
• In Cruzan v. Missouri Department of Health (1990), the Court held that there was a fundamental right to refuse medical treatment (prior to holding that Missouri was within its power to require clear evidence that Cruzan would have wanted to be taken off life support after entering a persistent vegetative state).

Beyond these cases, however, an increasingly conservative Court has mainly rejected attempts to expand either the right to privacy or substantive due process more generally. For example, in Whalen v. Roe (1977), the Court rejected attempts to expand the right to privacy to include informational privacy, while in Washington v. Glucksberg (1997) found there was no fundamental “right to die” (i.e. assisted suicide for the terminally ill).

Gay Rights before Lawrence v. Texas

The main exception to this trend has been gay rights, which now include a right to gay marriage that, despite the Court’s 2022 overturning of Roe v. Wade, seems likely to survive the Court’s post-Trump conservative majority despite a concurring opinion by Justice Thomas in Dobbs that suggests otherwise.

Initial attempts at expanding Fourteenth Amendment protections to gay rights met with failure. In 1971, two Minnesotan men sued under the Fourteenth Amendment after the state denied them a marriage license. The Minnesota Supreme Court offered a brief and unanimous rejection of their claim on appeal, arguing that the institution of marriage was geared towards procreation and child-raising, justifying its limitation to opposite-sex couples. Baker appealed to the Supreme Court, which refused to hear the case for “want of a substantial federal question.” As the case had come to the Court through mandatory appeal (abolished in 1988), the refusal to hear Baker v. Nelson was treated as binding precedent that there was no right to gay marriage.

Attempts to protect gay rights through the courts would next target anti-sodomy laws. Sodomy, legally defined as either anal or oral sex (or any non-procreative sex), was widely prohibited, though the laws themselves were very rarely enforced. While most sodomy prohibitions applied to everyone, a few states only banned sodomy when performed by homosexuals, which raised Equal Protection as well as right to privacy claims.

Criminal sodomy laws had important parallels to the birth control regulations struck down in Griswold. The laws were intrusive on their face, applying to private behavior within the bedroom. They were rarely enforced. Additionally, what enforcement did occur almost exclusively applied against homosexuals even in states where the law applied to everyone. Gay rights advocates thus hoped that the courts would be willing to strike down these laws even though at the time there was limited support for gay rights.

The initial attempt to invoke the Fourteenth Amendment against sodomy statutes narrowly failed in Bowers v. Hardwick (1986). This case began when a police officer, attempting to serve a warrant, found Hardwick engaged in sexual activity with another man in his bedroom. Hardwick was arrested and charged under Georgia’s anti-sodomy statute. Though the district attorney did not bring the case to a grand jury, Hardwick sued in federal court, arguing that he was still in danger of future arrest and that the law violated both the Ninth and the Fourteenth Amendments.

While the trial court upheld the law, the Eleventh Circuit reversed, holding that the Supreme Court’s ruling in Griswold—as well as Stanley v. Georgia, a 1969 obscenity case that struck down laws banning simple possession of (adult) pornography in one’s home— “leads us to conclude that the Georgia sodomy statute implicates a fundamental right.” Bowers, the Attorney General of Georgia, appealed to the Supreme Court. A closely divided Supreme Court overturned the Eleventh Circuit and ruled for Georgia.

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Bowers v. Hardwick

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478 U.S. 186 (1986)

Facts: Hardwick was found engaging in sodomy with another adult in his bedroom by a police officer, and was charged with violating Georgia’s anti-sodomy statute (a criminal offense). Though the local district attorney decided not to present the matter to a grand jury, Hardwick sued in federal court, arguing he was still in danger of arrest, and that the Georgia law violated both the Ninth and Fourteenth Amendments.

Question: Is sodomy protected by the Constitution?

Vote: No, 5-4

For the Court: Justice White

Concurring opinion: Justice Burger

Concurring opinion: Justice Powell

Dissenting opinion: Justice Blackmun

Dissenting opinion: Justice Stevens

JUSTICE WHITE delivered the opinion of the Court.

In August, 1982, respondent Hardwick (hereafter respondent) was charged with violating the Georgia statute criminalizing sodomy by committing that act with another adult male in the bedroom of respondent’s home. After a preliminary hearing, the District Attorney decided not to present the matter to the grand jury unless further evidence developed.

Respondent then brought suit in the Federal District Court, challenging the constitutionality of the statute insofar as it criminalized consensual sodomy. He asserted that he was a practicing homosexual, that the Georgia sodomy statute, as administered by the defendants, placed him in imminent danger of arrest, and that the statute for several reasons violates the Federal Constitution…

A divided panel of the Court of Appeals for the Eleventh Circuit reversed [the district court’s denial of Hardwick’s lawsuit]… Relying on our decisions in Griswold v. Connecticut (1965); Eisenstadt v. Baird (1972); Stanley v. Georgia (1969); and Roe v. Wade (1973), the court went on to hold that the Georgia statute violated respondent’s fundamental rights because his homosexual activity is a private and intimate association that is beyond the reach of state regulation by reason of the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment…

Because other Courts of Appeals have arrived at judgments contrary to that of the Eleventh Circuit in this case, we granted the Attorney General’s petition for certiorari… We agree with petitioner that the Court of Appeals erred, and hence reverse its judgment.

This case does not require a judgment on whether laws against sodomy between consenting adults in general, or between homosexuals in particular, are wise or desirable. It raises no question about the right or propriety of state legislative decisions to repeal their laws that criminalize homosexual sodomy, or of state court decisions invalidating those laws on state constitutional grounds. The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy, and hence invalidates the laws of the many States that still make such conduct illegal, and have done so for a very long time…

We first register our disagreement with the Court of Appeals and with respondent that the Court’s prior cases have construed the Constitution to confer a right of privacy that extends to homosexual sodomy and, for all intents and purposes, have decided this case… we think it evident that none of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case. No connection between family, marriage, or procreation, on the one hand, and homosexual activity, on the other, has been demonstrated, either by the Court of Appeals or by respondent. Moreover, any claim that these cases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable…

Precedent aside, however, respondent would have us announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do…

Striving to assure itself and the public that announcing rights not readily identifiable in the Constitution’s text involves much more than the imposition of the Justices’ own choice of values on the States and the Federal Government, the Court has sought to identify the nature of the rights qualifying for heightened judicial protection. In Palko v. Connecticut, (1937), it was said that this category includes those fundamental liberties that are “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if [they] were sacrificed.” A different description of fundamental liberties appeared in Moore v. East Cleveland, where they are characterized as those liberties that are “deeply rooted in this Nation’s history and tradition.” …

It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have ancient roots.  Sodomy was a criminal offense at common law, and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. Against this background, to claim that a right to engage in such conduct is “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty” is, at best, facetious.

Nor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause. The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution. That this is so was painfully demonstrated by the face-off between the Executive and the Court in the 1930’s…

Respondent, however, asserts that the result should be different where the homosexual conduct occurs in the privacy of the home. He relies on Stanley v. Georgia, (1969), where the Court held that the First Amendment prevents conviction for possessing and reading obscene material in the privacy of one’s home:

If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his house, what books he may read or what films he may watch.

Stanley did protect conduct that would not have been protected outside the home, and it partially prevented the enforcement of state obscenity laws; but the decision was firmly grounded in the First Amendment. The right pressed upon us here has no similar support in the text of the Constitution, and it does not qualify for recognition under the prevailing principles for construing the Fourteenth Amendment. Its limits are also difficult to discern. Plainly enough, otherwise illegal conduct is not always immunized whenever it occurs in the home. Victimless crimes, such as the possession and use of illegal drugs, do not escape the law where they are committed at home…  And if respondent’s submission is limited to the voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road.

Even if the conduct at issue here is not a fundamental right, respondent asserts that there must be a rational basis for the law, and that there is none in this case other than the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable. This is said to be an inadequate rationale to support the law. The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed…

CHIEF JUSTICE BURGER, concurring.

I join the Court’s opinion, but I write separately to underscore my view that, in constitutional terms, there is no such thing as a fundamental right to commit homosexual sodomy…

Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law. During the English Reformation, when powers of the ecclesiastical courts were transferred to the King’s Courts, the first English statute criminalizing sodomy was passed. Blackstone described “the infamous crime against nature” as an offense of “deeper malignity” than rape, a heinous act “the very mention of which is a disgrace to human nature,” and “a crime not fit to be named.” The common law of England, including its prohibition of sodomy, became the received law of Georgia and the other Colonies. In 1816, the Georgia Legislature passed the statute at issue here, and that statute has been continuously in force in one form or another since that time. To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.

This is essentially not a question of personal “preferences,” but rather of the legislative authority of the State. I find nothing in the Constitution depriving a State of the power to enact the statute challenged here.

JUSTICE POWELL, concurring.

I join the opinion of the Court. I agree with the Court that there is no fundamental right — i.e., no substantive right under the Due Process Clause — such as that claimed by respondent Hardwick, and found to exist by the Court of Appeals. This is not to suggest, however, that respondent may not be protected by the Eighth Amendment of the Constitution. The Georgia statute at issue in this case, authorizes a court to imprison a person for up to 20 years for a single private, consensual act of sodomy. In my view, a prison sentence for such conduct — certainly a sentence of long duration — would create a serious Eighth Amendment issue. Under the Georgia statute, a single act of sodomy, even in the private setting of a home, is a felony comparable in terms of the possible sentence imposed to serious felonies such as aggravated battery, first-degree arson, and robbery.

In this case, however, respondent has not been tried, much less convicted and sentenced. Moreover, respondent has not raised the Eighth Amendment issue below. For these reasons this constitutional argument is not before us…

JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS join, dissenting.

This case is no more about “a fundamental right to engage in homosexual sodomy,” as the Court purports to declare, than Stanley v. Georgia, was about a fundamental right to watch obscene movies… Rather, this case is about “the most comprehensive of rights and the right most valued by civilized men,” namely, “the right to be let alone.” Olmstead v. United States (1928) (Brandeis, J., dissenting).

The statute at issue… denies individuals the right to decide for themselves whether to engage in particular forms of private, consensual sexual activity…

I believe we must analyze respondent Hardwick’s claim in the light of the values that underlie the constitutional right to privacy. If that right means anything, it means that, before Georgia can prosecute its citizens for making choices about the most intimate aspects of their lives, it must do more than assert that the choice they have made is an “abominable crime not fit to be named among Christians.” 

I

In its haste to reverse the Court of Appeals… the Court relegates the actual statute being challenged to a footnote, and ignores the procedural posture of the case before it. A fair reading of the statute and of the complaint clearly reveals that the majority has distorted the question this case presents.

First, the Court’s almost obsessive focus on homosexual activity is particularly hard to justify in light of the broad language Georgia has used. Unlike the Court, the Georgia Legislature has not proceeded on the assumption that homosexuals are so different from other citizens that their lives may be controlled in a way that would not be tolerated if it limited the choices of those other citizens. Rather, Georgia has provided that “[a] person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.”

The sex or status of the persons who engage in the act is irrelevant as a matter of state law. In fact, to the extent I can discern a legislative purpose for Georgia’s 1968 enactment [of the law] … that purpose seems to have been to broaden the coverage of the law to reach heterosexual as well as homosexual activity… his claim that [the law] involves an unconstitutional intrusion into his privacy and his right of intimate association does not depend in any way on his sexual orientation…

II

… In construing the right to privacy, the Court has proceeded along two somewhat distinct, albeit complementary, lines. First, it has recognized a privacy interest with reference to certain decisions that are properly for the individual to make.  Second, it has recognized a privacy interest with reference to certain places without regard for the particular activities in which the individuals who occupy them are engaged. The case before us implicates both the decisional and the spatial aspects of the right to privacy.

A

The Court concludes today that none of our prior cases dealing with various decisions that individuals are entitled to make free of governmental interference “bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case.”  While it is true that these cases may be characterized by their connection to protection of the family, the Court’s conclusion that they extend no further than this boundary ignores the warning in Moore v. East Cleveland, against “clos[ing] our eyes to the basic reasons why certain rights associated with the family have been accorded shelter under the Fourteenth Amendment’s Due Process Clause.”

We protect those rights not because they contribute, in some direct and material way, to the general public welfare, but because they form so central a part of an individual’s life. “[T]he concept of privacy embodies the moral fact that a person belongs to himself, and not others nor to society as a whole.”  …

We protect the decision whether to have a child because parenthood alters so dramatically an individual’s self-definition, not because of demographic considerations or the Bible’s command to be fruitful and multiply. And we protect the family because it contributes so powerfully to the happiness of individuals, not because of a preference for stereotypical households…

Only the most willful blindness could obscure the fact that sexual intimacy is “a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality.” The fact that individuals define themselves in a significant way through their intimate sexual relationships with others suggests, in a Nation as diverse as ours, that there may be many “right” ways of conducting those relationships, and that much of the richness of a relationship will come from the freedom an individual has to choose the form and nature of these intensely personal bonds…

For example, in holding that the clearly important state interest in public education should give way to a competing claim by the Amish to the effect that extended formal schooling threatened their way of life, the Court declared:

There can be no assumption that today’s majority is ‘right’ and the Amish and others like them are ‘wrong.’ A way of life that is odd or even erratic, but interferes with no rights or interests of others, is not to be condemned because it is different.” Wisconsin v. Yoder (1972).

The Court claims that its decision today merely refuses to recognize a fundamental right to engage in homosexual sodomy; what the Court really has refused to recognize is the fundamental interest all individuals have in controlling the nature of their intimate associations with others.

B

The behavior for which Hardwick faces prosecution occurred in his own home, a place to which the Fourth Amendment attaches special significance. The Court’s treatment of this aspect of the case is symptomatic of its overall refusal to consider the broad principles that have informed our treatment of privacy in specific cases. Just as the right to privacy is more than the mere aggregation of a number of entitlements to engage in specific behavior, so too protecting the physical integrity of the home is more than merely a means of protecting specific activities that often take place there…

The Court’s interpretation of the pivotal case of Stanley v. Georgia (1969), is entirely unconvincing. Stanley held that Georgia’s undoubted power to punish the public distribution of constitutionally unprotected, obscene material did not permit the State to punish the private possession of such material. According to the majority here, Stanley relied entirely on the First Amendment, and thus, it is claimed, sheds no light on cases not involving printed materials.  But that is not what Stanley said. Rather, the Stanley Court anchored its holding in the Fourth Amendment’s special protection for the individual in his home:

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.

… The central place that Stanley gives Justice Brandeis’ dissent in Olmstead, a case raising no First Amendment claim, shows that Stanley rested as much on the Court’s understanding of the Fourth Amendment as it did on the First…

III

The Court’s failure to comprehend the magnitude of the liberty interests at stake in this case leads it to slight the question whether petitioner, on behalf of the State, has justified Georgia’s infringement on these interests…

First, petitioner asserts that the acts made criminal by the statute may have serious adverse consequences for “the general public health and welfare,” such as spreading communicable diseases or fostering other criminal activity. Inasmuch as this case was dismissed by the District Court on the pleadings, it is not surprising that the record before us is barren of any evidence to support petitioner’s claim. In light of the state of the record, I see no justification for the Court’s attempt to equate the private, consensual sexual activity at issue here with the “possession in the home of drugs, firearms, or stolen goods” to which Stanley refused to extend its protection. None of the behavior so mentioned in Stanley can properly be viewed as “[v]ictimless”: drugs and weapons are inherently dangerous, and for property to be “stolen,” someone must have been wrongfully deprived of it. Nothing in the record before the Court provides any justification for finding the activity forbidden by [the law] to be physically dangerous, either to the persons engaged in it or to others.

The core of petitioner’s defense of [the law], however, is that respondent and others who engage in the conduct prohibited … interfere with Georgia’s exercise of the “right of the Nation and of the States to maintain a decent society.”  Essentially, petitioner argues, and the Court agrees, that “for hundreds of years, if not thousands, [acts of sodomy] have been uniformly condemned as immoral” is a sufficient reason to permit a State to ban them today.

I cannot agree that either the length of time a majority has held its convictions or the passions with which it defends them can withdraw legislation from this Court’s scrutiny…

The assertion that “traditional Judeo-Christian values proscribe” the conduct involved, cannot provide an adequate justification. That certain, but by no means all, religious groups condemn the behavior at issue gives the State no license to impose their judgments on the entire citizenry. The legitimacy of secular legislation depends, instead, on whether the State can advance some justification for its law beyond its conformity to religious doctrine…

No matter how uncomfortable a certain group may make the majority of this Court, we have held that “[m]ere public intolerance or animosity cannot constitutionally justify the deprivation of a person’s physical liberty.” …

Petitioner and the Court fail to see the difference between laws that protect public sensibilities and those that enforce private morality. Statutes banning public sexual activity are entirely consistent with protecting the individual’s liberty interest in decisions concerning sexual relations: the same recognition that those decisions are intensely private which justifies protecting them from governmental interference can justify protecting individuals from unwilling exposure to the sexual activities of others. But the mere fact that intimate behavior may be punished when it takes place in public cannot dictate how States can regulate intimate behavior that occurs in intimate places…

IV

I can only hope that here, too, the Court soon will reconsider its analysis and conclude that depriving individuals of the right to choose for themselves how to conduct their intimate relationships poses a far greater threat to the values most deeply rooted in our Nation’s history than tolerance of nonconformity could ever do. Because I think the Court today betrays those values, I dissent.

JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting.

Like the statute that is challenged in this case, the rationale of the Court’s opinion applies equally to the prohibited conduct regardless of whether the parties who engage in it are married or unmarried, or are of the same or different sexes…

The history of the Georgia statute before us clearly reveals this traditional prohibition of heterosexual, as well as homosexual, sodomy…

Because the Georgia statute expresses the traditional view that sodomy is an immoral kind of conduct regardless of the identity of the persons who engage in it, I believe that a proper analysis of its constitutionality requires consideration of two questions: first, may a State totally prohibit the described conduct by means of a neutral law applying without exception to all persons subject to its jurisdiction? If not, may the State save the statute by announcing that it will only enforce the law against homosexuals? The two questions merit separate discussion.

I

Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Griswold v. Connecticut (1965). Moreover, this protection extends to intimate choices by unmarried, as well as married, persons…

… when individual married couples are isolated from observation by others, the way in which they voluntarily choose to conduct their intimate relations is a matter for them — not the State — to decide. The essential “liberty” that animated the development of the law in cases like Griswold … surely embraces the right to engage in nonreproductive sexual conduct that others may consider offensive or immoral.

Paradoxical as it may seem, our prior cases thus establish that a State may not prohibit sodomy within “the sacred precincts of marital bedrooms.” In all events, it is perfectly clear that the State of Georgia may not totally prohibit the conduct proscribed by … the Georgia Criminal Code.

II

If the Georgia statute cannot be enforced as it is written — if the conduct it seeks to prohibit is a protected form of liberty for the vast majority of Georgia’s citizens — the State must assume the burden of justifying a selective application of its law. Either the persons to whom Georgia seeks to apply its statute do not have the same interest in “liberty” that others have, or there must be a reason why the State may be permitted to apply a generally applicable law to certain persons that it does not apply to others.

The first possibility is plainly unacceptable. Although the meaning of the principle that “all men are created equal” is not always clear, it surely must mean that every free citizen has the same interest in “liberty” that the members of the majority share. From the standpoint of the individual, the homosexual and the heterosexual have the same interest in deciding how he will live his own life, and, more narrowly, how he will conduct himself in his personal and voluntary associations with his companions. State intrusion into the private conduct of either is equally burdensome.

The second possibility is similarly unacceptable. A policy of selective application must be supported by a neutral and legitimate interest — something more substantial than a habitual dislike for, or ignorance about, the disfavored group. Neither the State nor the Court has identified any such interest in this case. The Court has posited as a justification for the Georgia statute “the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable.” But the Georgia electorate has expressed no such belief — instead, its representatives enacted a law that presumably reflects the belief that all sodomy is immoral and unacceptable. Unless the Court is prepared to conclude that such a law is constitutional, it may not rely on the work product of the Georgia Legislature to support its holding. For the Georgia statute does not single out homosexuals as a separate class meriting special disfavored treatment…

… As JUSTICE POWELL points out, moreover, Georgia’s prohibition on private, consensual sodomy has not been enforced for decades. The record of nonenforcement, in this case and in the last several decades, belies the Attorney General’s representations about the importance of the State’s selective application of its generally applicable law…

III

The Court orders the dismissal of respondent’s complaint even though the State’s statute prohibits all sodomy; even though that prohibition is concededly unconstitutional with respect to heterosexuals; and even though the State’s post hoc explanations for selective application are belied by the State’s own actions. At the very least, I think it clear at this early stage of the litigation that respondent has alleged a constitutional claim sufficient to withstand a motion to dismiss.

While Bowers v. Hardwick was a defeat for gay rights, it marked a turning point for the legal and political fortunes of the movement. Politically, the decision served as a flashpoint for gay rights organizations, helping drive recruitment and mobilization. Just as importantly, Bowers was decided towards the end of one cultural era and the beginning of another. In 1986, gay rights were mainly unpopular with the public, often used as a “wedge issue” by conservative politicians against their liberal opponents. Beginning in the 1990s, however, public opinion on gay rights would undergo a remarkable transformation. For example, criminal sodomy laws were repealed in multiple states, either legislatively or by state courts. The law in Bowers, for example, was overturned by the Georgia Supreme Court in 1998.

Similarly, support for gay marriage, one important barometer of public support for gay rights, steadily rose over time. In 1996—one year after Romer v. Evans (see below)—only 27 percent of the country supported gay marriage, according to a Gallup poll. In 2015, the year the Court ruled states could not exclude homosexuals from marriage laws, that support had risen to 60%. By 2021, support had risen further to 70%, including 55% of Republicans. While the exact impact of public opinion on judicial decision-making remains debated among political scientists, there is good evidence that justices are influenced both by the overall decision environment (i.e. how popular something is among the public) and as individuals themselves subject to changes in public opinion (i.e. how public opinion trends impact their own legal policy preferences). Such pressures may be even more influential in substantive due process cases, where the justices cannot fall back on the text of the Constitution to anchor their decision.

Changes in public opinion would come alongside changes in the movement’s legal fortunes. The first major gay rights case held after Bowers was Romer v. Evans (1996). In the early 1990s, many cities, urban counties, and universities would add sexual orientation to existing anti-discrimination statutes (or in some cases, create new laws). In Colorado, conservative opponents of these changes proposed an amendment to the state constitution that effectively banned such protections. Amendment 2, which was passed in 1992, was challenged as unconstitutional discrimination. After the Colorado Supreme Court upheld Amendment 2, the plaintiffs appealed to the Supreme Court.

The challenge in Romer involved equal protection doctrine rather than substantive due process. That said, its reasoning greatly informed future gay rights cases that involved substantive due process (as Skinner v. Oklahoma showed, the two clauses sometimes overlap when both equality and liberty concerns are at play).

By a 6-3 margin, the Court struck down Amendment 2. Writing for the majority, Justice Kennedy first objected to the breadth of Amendment 2, which not only prevented localities from adding homosexuals to protected classes in discrimination statutes but also could deprive homosexuals of legal protections against discrimination otherwise available to all Coloradans. Kennedy then applied an equal protection analysis. Evading the question of whether homosexuals should be treated as a protected class under the Equal Protection Clause (such as race, gender, or ethnicity), Kennedy instead asked whether the state had any rational basis for passing Amendment 2:

The Fourteenth Amendment’s promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.  We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.

Amendment 2 fails, indeed defies, even this conventional inquiry…

… laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. “[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare … desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Even laws enacted for broad and ambitious purposes often can be explained by reference to legitimate public policies which justify the incidental disadvantages they impose on certain persons. Amendment 2, however, in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it…

The primary rationale the State offers for Amendment 2 is respect for other citizens’ freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality. Colorado also cites its interest in conserving resources to fight discrimination against other groups. The breadth of the amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit…

We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do…

Perhaps the most critical point in Kennedy’s Romer opinion was its statement that Amendment 2 was primarily motivated by animus, or dislike of homosexuals as a class. Recasting “public morality” as “animus” dramatically changed the rational basis calculation made a decade ago in Bowers and allowed the Court to strike down the amendment as irrational discrimination without facing the more politically difficult determination of whether to elevate homosexuality to a protected class. The decision also suggests that opposition to gay rights would need to rest on more than just moral disapproval of homosexuality to survive legal challenges—a goal that opponents of gay rights and later gay marriage would continually fail to meet.