Sexual orientation and the paradox of heightened scrutiny.

• Author: Hunter, Nan D.

In Lawrence v. Texas, (1) the Supreme Court performed a double move, creating a dramatic discursive moment: it both decriminalized consensual homosexual relations between adults, and, simultaneously, authorized a new regime of heightened regulation of homosexuality. How that happened and what we can expect next are the subjects of this essay.

The obvious point of departure for an analysis of Lawrence is its decriminalization of much sexual conduct. Justice Scalia began this project with his dire warning that "[s]tate laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are ... sustainable only in light of Bowers' validation of laws based on moral choices." (2) Justice Scalia correctly predicts that laws against fornication are now a dead letter, (3) there are no laws against masturbation, so his worries there are unnecessary. (4) But the judicial processes for evaluating laws prohibiting other sexual conduct will constitute one major segment of the overall process that will construct the next chapter of sexuality law.

Sodomy law operated as both a mechanism of subordination and a metaphor of heterosexual superiority. (5) Decriminalization is not deregulation, however. Nor is it a marker of full equality. Rather, it is one stage in a regulatory process, one likely to produce even more "institutional incitement to speak about [sex], and to do so more and more; a determination on the part of the agencies of power to hear it spoken about, and to cause it to speak through explicit articulation and endlessly accumulated detail." (6) State involvement with sexuality has not ended, and Lawrence poses an implicit question: How will the discursive policing of homosexuality change in the wake of this decision? (7)

Legal disputes will likely center on the extent to which the indirect mechanisms operating in fields such as family and employment law will supplant criminal law in state regulation of homosexuality. Lawrence deprives the government of easy invocations of morals or tradition to justify regulation. Courts will have to engage in more particularized assessments of whether legitimate state interests justify classifications based on sexual orientation: judges will have to hear homosexuality spoken about even more frequently, and, in order to do their jobs, will have to cause it to speak.

The threshold question in such inquiries will be determining the correct standard of review. Courts may be reluctant to test sexual orientation classifications by the same stringent criteria that they apply under the upper tiers of Equal Protection review, but the extreme deference of old-fashioned rational basis review has now been complicated by the Court's recognition that at least some adverse treatment of gay people is invidious and disfavored. Justice O'Connor's concurring opinion suggests that there are two tiers of rational basis review as well, something the Court intimated but did not make explicit in Romer v. Evans. (8)

Whatever standard of review the courts apply, the inquiries into the reasonableness of differentiating based on sexual orientation will become more detailed and contextual. This aspect of "heightened scrutiny" reflects the fact that juridical discourse on sexuality always has two focuses: examination of the legitimacy of governmental actions and, often sub silentio, examination of the social acceptability of those persons who are the objects of the government's interventions. I use the phrase "heightened scrutiny" here to refer not to the standard hierarchy of levels of review under the Equal Protection Clause, but to surface this second, implicit meaning of the phrase. The paradox of this form of heightened scrutiny is that such examinations will constitute even greater state intrusion than occurred under the old criminal law regime, a development which seems the antithesis of the Lawrence Court's expansion of liberty.

1. THE LAW OF LAWRENCE

   In Lawrence v. Texas, (9) the Supreme Court struck down a Texas criminal statute that prohibited oral or anal sex between two persons of the same sex. In so doing, the Court held that the liberty interest protected by the Due Process Clause extends to adults "deciding how to conduct their private lives in matters pertaining to sex." (10) Although it requires some effort to articulate precisely what standard of review the Court deployed in its analysis, (11) there is no question that, whatever test it used, the Court eradicated the last vestiges of state power to criminalize private consensual adult sexual behavior solely on the basis of morality, without any showing of harm either to persons or to legally protected institutions.

   To understand the extent to which the Court jettisoned morality qua morality as a legitimate justification, one can compare the decision in Lawrence to that of the Kentucky Supreme Court in Commonwealth v. Wasson, (12) which also invalidated a law, essentially identical to the Texas statute, that prohibited sodomy only between same-sex partners. Relying on state constitutional provisions protecting liberty and equality, the Kentucky court did not bar legislative reliance on morality as a justification for criminalization of private adult consensual sexual conduct. Instead, the court held that a moral justification could only be legitimate if the same standard applied to all citizens, not just to lesbians and gay men. (13) But the Kentucky court did not question the legitimacy of a morality justification for the prohibition of sodomy.

   A holding such as that of the Kentucky court in Wasson--with its deference to legislated morality so long as it was evenhanded--was all that the Supreme Court in Lawrence had to adopt in order to strike down the Texas law. It is telling that the majority specifically eschewed this course. (14) Instead, the Court rejected morality alone as a sufficient ground for prohibiting consensual sexual conduct.

   Other opinions in Lawrence also undercut the morality defense. Justice O'Connor's concurring opinion, which did rely on Equal Protection grounds, rejected the most traditional use of morality rationales by noting that laws embodying moral disapproval of a group of persons could not pass a rational basis test. (15) Even Justice Thomas's terse dissent, with its characterization of sodomy prohibitions as "uncommonly silly," suggested that he personally found the morality arguments unpersuasive, even though he believed that the judiciary was constrained not to second-guess a legislature's use of them. (16)

   Thus, Lawrence proffers a critically important new principle: untethered to some objective, material referent, morality alone cannot justify deprivation of liberty. But exactly what this abstract declaration will mean in practice is anything but clear.

   Most of the impact of the now extinct sodomy laws had already crossed the borders of criminal law prior to Lawrence. As the Court noted, criminalization invites "discrimination both in the public and in the private spheres." (17) Prior to Lawrence, courts had routinely accepted that invitation. Reasoning from the holding of Bowers v. Hardwick, (18) the judiciary developed what I have called the categorical inequality principle, ruling that because gay people presumptively violated criminal prohibitions against sodomy, the government could properly deny them employment or custody or visitation rights with their children. (19)

   Categorical inequality based on sodomy laws has now ended. Despite the Court's strong rhetoric of respect and dignity as to gay lives, (20) however, the Lawrence opinion does not fully answer the equality question of when and under what circumstances the law must, to use Justice O'Connor's phrase, treat gay people "in the same manner as everyone else." (21)

   Instead, mixed in with the language of liberty, the Lawrence text contains a series of verbal gestures toward possibilities of regulation. In addition to a list of situations not covered by its holding, (22) the Court in Lawrence explicitly left open the question of whether same-sex personal relationships are "entitled to formal recognition in the law." (23) Consider the many aspects of family law, other than marriage, that courts deliberating on whether to accord "formal recognition in the law" to gay couples will have to address: eligibility for adoption, taxability of assets and income, immigration status, standing to seek redress for certain torts, entitlement to family leave and other employment benefits, and many others. Is "recognition" a positive or a negative liberty? If "formal recognition" entails some affirmative extension of benefits, can we infer that the liberty right precludes the imposition of penalties based on those relationships? If so, how does one draw the line between benefits denied and penalties imposed? Is there any disadvantage that the state can lawfully impose on non-commercial, consensual adult sexual conduct that occurs in private? (24)

   It is striking that in the first year after the Lawrence majority authored the grand language of its opinion, appellate courts upheld three forms of stark antigay discrimination. In Standhart v. Superior Court of Maricopa County, (25) the Arizona Court of Appeals ruled that the state could bar gay couples from marriage, on the ground that a rational relationship existed between the legal definition of marriage as limited to male-female unions and the state's legitimate interest in "ensuring responsible procreation within committed, long-term relationships." (26) In State v. Limon, (27) the Kansas Court of Appeals upheld a seventeen-year sentence for an eighteen-year-old male who engaged in oral sex with a fourteen-year-old male, despite the fact that the maximum sentence would have been slightly more than one year had one of them been female. In Lofton v. Secretary of Department of Children and Family Services, (28) the U.S. Court of Appeals...