Sexual Orientation

• Author: Kenneth L. Karst
• Pages: 2401-2403

Page 2401

Today government officially and systematically stigmatizes persons of homosexual orientation in two principal ways. The first is embodied in the sodomy laws that remain in about half of the states, and the second is embodied in laws and regulations restricting government employment to persons who are heterosexual. Most prominent among the employment restrictions are the federal government's regulations barring gay men and lesbians from serving in the ARMED FORCES.

In BOWERS V. HARDWICK (1986) the Supreme Court, 5?4, upheld the application to homosexual sex of a Georgia law making sodomy a crime punishable by imprisonment up to twenty years. The majority rejected a claim that the law violated the RIGHT OF PRIVACY that had been recognized within the doctrine of SUBSTANTIVE DUE PROCESS. Justice LEWIS F. POWELL, who provided the crucial fifth vote for the majority, originally voted with the dissenters, but after the Court's CONFERENCE switched his vote to uphold the law. Ina CONCURRING OPINION, however, he noted that the case would be different for him if the state actually enforced the law by putting someone in prison.

Justice Powell's effort at accommodation leaves wholly untouched the most serious harm caused to gay and lesbian Americans by the sodomy laws. Although such a law played a role in the harassment of Michael Hardwick, the sodomy laws are rarely enforced by prosecution. Their mission today is to symbolize society's disapproval of persons who are gay or lesbian, legitimizing the identification of homosexuals as outsiders and thus encouraging not only police harassment but privately inflicted harm, from insults to trashing to violence. Stigma, in other words, is not just a by-product of the sodomy laws; it is their main function.

The Hardwick majority not only failed to deal with this problem of stigmatic harm but evaded the whole question of inequality. The Court noted that the Georgia law, despite its general language, was never applied to heterosexual sodomy; accordingly, the Court would not pronounce on the constitutionality of any such application. Having thus raised a serious issue of discrimination, the majority ignored the question whether the discrimination violated the guarantee of EQUAL PROTECTION OF THE LAWS.

A similar equal protection issue has been presented to a number of lower courts in the years since Hardwick, most frequently in contexts involving exclusion of persons identified as lesbians and gay men from government employment, notably service in the armed forces. Some judges have been sympathetic to these equal protection claims; but to date the prevailing view has rejected them, and thus far the Supreme Court has declined to review these decisions. The military exclusion policy, which seems likely to confront the Court with the equality issues

Page 2402

in antigay discrimination, illustrates those issues as they may...