On Listening to the Kulturkampf, or, How America Overruled Bowers V. Hardwick, Even Though Romer V. Evans Didn't

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INTRODUCTION

Is Bowers v. Hardwick(1) still good law? It's been fourteen years since the decision upholding Georgia's sodomy law knocked the wind out of the gay rights movement and signaled an end to the expansion of the Supreme Court's substantive due process jurisprudence. Fourteen years, and much has changed: a largely different Court; a subsequent "gay rights case," Romer v. Evans;(2) but also an exponential rise in openly gay television characters, Hollywood celebrities, and politicians; a widespread extension by corporations of family benefits to gay and lesbian domestic partners; and unprecedented public debate on gay marriage, gays in the military, gays at the office, gays just about everywhere. Is the old, quaint reasoning of Bowers still the law of the land?

Upon close reading, I think it is impossible to maintain that the 1996 decision of Romer v. Evans, which voided as unconstitutional a Colorado state constitutional amendment banning gay rights ordinances, overruled Bowers. Different in tone, Romer never mentioned Bowers, the cases rest on different grounds (Romer on the Equal Protection Clause, Bowers on the Due Process Clause), and the laws at issue functioned differently (the Georgia statute in Bowers governed conduct; the Colorado amendment in Romer, status). The Georgia law was deemed valid because it did not interfere with a protected right; the Colorado provision was deemed unconstitutional because it created classes of individuals. These are not contradictory cases; they are complementary. After Romer, Bowers was healthier than ever.

But if we take a fresh look at Bowers in the context of the Court's theories of substantive due process, the case's foundations begin to look quite shaky. Remember that Bowers only deemed "facetious" the argument that homosexual sodomy is a fundamental right after noting that the claim failed a threshold requirement for qualifying as such a right under the Fourteenth Amendment--namely, a relation to "family, marriage, or procreation."(3) But times have changed since 1986. In 1986, the kulturkampf(4) that Justice Scalia would later describe in his Romer dissent(5) had not yet begun in earnest; it was hard for Justice White even to imagine a connection between homosexual sodomy and the areas of life traditionally protected by the Fourteenth Amendment. Not so in 2000, a time at which America has thousands of recognized gay families; gay domestic partnerships recognized by corporations and many municipalities; gay adoptive parents; not to mention gay television characters and members of Congress. American culture's definition of the "family" has gradually changed in the last fifteen years to the point where not only is "it difficult to speak of an average American family," as the Court recently noted,(6) but where the determination of what constitutes a "family" has itself become a matter of debate, and thus, is a protected, personal decision that the state cannot control.

This is not to say that public endorsements of gay families are constitutionally required, or even desirable. Nor is it to say that there is agreement as to what constitutes a "family"--far from it. Rather, the argument is only that the definition of "family," in terms of the way the word is actually used in contemporary society, reasonably may include homosexual couples (and their adopted children), a statement that may not have been true fifteen years ago. As such, a legislature cannot define away gay families by proposing a limiting definition, any more than they can censor political speech by labeling it apolitical; and since gay sexual activity is as important to gay families as straight sex is to straight families, laws that would prohibit such activity are unconstitutional absent a compelling state interest to justify them. All this without any extension of substantive due process--a doctrine sprung from a constitutional provision whose elasticity appears to have reached its limit. …