What is Sodomy? Anal or Oral copulation with a member of either the same or opposite sex. Until 1961, all 50 states had some form of sodomy law. Until last year, thirteen states criminalized private consensual sodomy, including that conducted in the privacy of one’s home.

Bower v. Hardwick Majority Opinion: The issue construed as whether or not there is a fundamental right guaranteed by the Constitution that protects homosexual sodomy. Deny this is a privacy right. Ancient roots of prohibitions on sodomy Rational Basis is met by looking to the notions of morality of the people of Georgia

Bower v. Hardwick Dissent: The issue is privacy. Majority “almost obsessive[ly] focus[ed]” on homosexual activity. There is an equal protection issue here. Failure to recognize the liberty interest allows the majority to overlook the appropriate form of judicial scrutiny required. Justice Jackson in WV Board of Ed v. Barnette: “we apply the limitations of the Constitution with no fear that freedom to be intellecutally and spiritually divers or even contrary will disintegrate the social organization…Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. “It is precisely because the issue raised by this case touches the heart of what makes individuals what they are that we should be especially sensitive to the rights of those whose choices upset the majority.” -- Justice Blackmun

Post-Bower Anthony Powell, tried in 1997 on rape and forcible sodomy charges, testified that the sex was consensual. The jury believed him and acquitted on all original counts filed. In the course of his testimony, Powell testified to having consensual oral sex. The trial judge required the jury to consider the "offense" of consensual sodomy. Powell was convicted and sentenced to five years in prison. On November 23, 1999 a nearly unanimous Georgia Supreme Court struck down the very same law.

The “Unnaturalness Argument” Queer sex is against the laws of nature. Queer sex is abnormal. Queer sex is the use of organs that is contrary to their purpose. Queer sex is bad.

Lawrence v. Texas Disputes Bowers’s historical evidence: “It was not until the 1970's that any State singled out same-sex relations for criminal prosecution, and only nine States have done so.” Relevance of recent developments: Recent developments “show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” Moral opinion doesn’t justify statute: “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.” No legitimate state interest here: “The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”

Scalia’s Dissent The statute is rational: “The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are ‘immoral and unacceptable,’...—the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity.” Morality is basis of law: “This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.” The lessons of history: “Whether homosexual sodomy was prohibited by a law targeted at same-sex sexual relations or by a more general law prohibiting both homosexual and heterosexual sodomy, the only relevant point is that it was criminalized—which suffices to establish that homosexual sodomy is not a right ‘deeply rooted in our Nation's history and tradition.’”

Amendment 2 Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian, or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status, or claim of discrimination. On November 3, 1992 Amendment 2 passed with 53% of the vote. Essentially means that G/L/B people (or those thought to be G/L/B) could be: Denied service in hotels, restaurants, theatres, etc. refused apartment rentals, home loans, or credit fired from a jog evicted from their homes Without legal recourse.

Romer v. Evans (1996) In a 6-3 vote, the Supreme Court found Amendment 2 unconstitutional based on the 14th amendment. Legal Reasoning Gays, Lesbians, Bisexuals put into a solitary class -- denied legal protection from discrimination, private injury, and possible the protection of general laws and policies providing equal protection, and thus equal participation in the political process. “We cannot accept the view that Amendment 2’s prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability upon those persons along. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint…These are protections taken for granted by most people; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.”

Romer Dissent Majority in error in 3 ways: 1. Coloradans are entitled to be hostile toward gays and lesbians because homosexual conduct is thought to be immoral by the majority of the population and such conduct undermines traditional values. 2. There is in fact a rational basis for the Amendment -- Bowers. 3. Not only is there a rational basis, but the Amendment is “emminently reasonable” given congressionally approved precedent in early cases -- anti polygamy provisions required for state admission into the union.

Same Sex Marriage There is no explicit prohibition against same-sex marriage in the law. There is a fundamental right to marry. Denying marriage licenses is an infringement on privacy Denying marriage licenses is a punishment, that in many states, does not accompany a crime. Denying marriage licenses is a violation of sex-based equal protection laws (in states that have them, e.g. Hawaii).

DOMAs State attempts to define marriage as “a legal union between one man and one woman as husband and wife” and to define spouse as “a person of the opposite sex who is a husband or a wife ”. “Almighty God created the races white, black, yellow, malay, and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.” Lovings v. Virginia 1967

Massachusetts Same-Sex Marriage Ruling Banning same sex marriage is unconstitutional because such a ban “violates the basic premises of individual liberty and equality under law.” Banning same sex marriage would deny individuals tangible benefits that flow from marriage, including rights in property, probate, tax and evidence law. Banning same sex marriage denies individuals other intangible social and private advantages. Creates a hardship for a certain segment of society without a rational basis. The nature of civil marriage, which is a secular, legal institution is to encourage stable adult relationships for the good of the individual, the community, and children. More than a semantic dispute between “civil marriage” and “civil union” as it creates a second class status and thus represents invidious discrimination.

Massachusetts Same-Sex Marriage Ruling Who gets to use the “m” word? Banning same sex marriage would NOT deny individuals tangible benefits that flow from marriage, including rights in property, probate, tax and evidence law if those rights are provided by “civil unions”. The other intangible social and private advantages that go along with marriage cannot be provided by the courts or the legislature. Federal rights that are associated with marriage cannot be provided by MA. Most states will not recognize the marriage as a marriage. So there is a substantive difference between marriage and union and thus there is a rational basis for the division.