MEMORANDUM TO JUSTICE RODHAM
 

Question Presented:
 

Does this Court’s holding in Romer v. Evans render unconstitutional a Georgia statute under which two men engaged in homosexual sodomy were prosecuted?
 

Short Answer:

No, but the statute is unconstitutional on other grounds.  Though Romer held that animus was an impermissible justification for a Colorado law which denied homosexuals the right to have laws passed protecting them from discrimination, the statute at issue in this case, and Bowers v. Hardwick, is not based on animus against persons, but rather on a legitimate state interest in promoting sexual morality.  As such, Romer was about setting up a structural caste system on the basis of sexual orientation (unconstitutional) but Bowers was about governing forms of behavior (constitutional under "light" scrutiny). However, the statute should nonetheless be ruled unconstitutional because now, unlike twelve years ago when Bowers was decided, the conduct governed by the statute cannot but fall within the zone of privacy governing familial intimate relations.  As such, the State of Georgia faces a heavy burden in showing the statute is justified, not merely because it is rationally related to a legitimate government purpose, but because it is tightly constructed to further a compelling state interest.  Since Georgia cannot meet this burden, the statute is unconstitutional.

Discussion

Petitioners in this case are, in their own way, attempting to snatch victory from the jaws of defeat, without asking whether the jaws have themselves loosened enough to permit a wider vindication of homosexual rights than their rationale would allow.  Petitioners’ basic theory is that Romer v. Evans, which voided a Colorado statute because it was found to have no rationale other than mere animus, effectively overruled Bowers v. Hardwick by saying that even the "light" requirements of showing a legitimate purpose behind the Amendment in question were not met.  Petitioners must thus say that the statute presently before the court, though identical to the one in Bowers, is similarly motivated.  This statement, though plausible, ultimately misses a critical difference between the two laws.

The law at issue in Romer, Amendment 2 to Colorado’s state constitution, would have made it unconstitutional for any municipality or other local government to pass "gay rights statutes," i.e., rules that barred discrimination against homosexuals.  In Romer, this Court held on Equal Protection grounds that Amendment 2 discriminated against homosexuals merely on the basis of animus, which is an impermissible basis for legislation of any kind.  Central to our analysis here is that Romer did not apply strict scrutiny to the Colorado amendment.  Rather, the Court’s opinion held that Amendment 2 was impermissible even under the "light" tests of rational relatedness to legitimate government purposes.  The Court wrote that homosexuals "are put in a solitary class" without the availability of legal protection.  Romer, 116 S.Ct. at 1624.  Though there was no fundamental right at issue, the classification of persons into "classes" was found to itself be at odds with the American "constitutional tradition."  Id. at 1628.  At the end of the Romer opinion, the Court added that "in addition to the far-reaching deficiencies of Amendment 2 that we have noted, the principles it offends, in another sense, are conventional and venerable; a law must bear a rational relationship to a legitimate government purpose."  Id. at 1629 (emphasis added).  Such a purpose was lacking, according to the court, because mere animosity justified the passage of Amendment 2.

In sum, Amendment 2 was held unconstitutional under the Equal Protection clause primarily because it put people into classes, secondarily because it could not have been motivated by anything other than animosity.  That the dissent in Romer focused on an alleged confusion of animosity and "kulturkampf" does not change the holding of the Court; the case was primarily about the structural justice offense associated with setting up classes of people, not about the motives of Colorado’s citizens.

In Bowers, no class divisions were established.  Rather, the Georgia sodomy law was understood as governing conduct, not status -- i.e., sodomy, not homosexuality -- and because that conduct did not fall within the zone of privacy established in prior cases, there was no fundamental right at issue.  The light justification of "sexual morality" was found acceptable by the Court.

Thus, Romer did not speak at all to this Court’s holding on conduct-based statutes.  If the statute before us now prohibited "any sex practiced by a homosexual," Romer would be applicable, because the statute would then be sorting people on the basis of status and establishing unequal rules governing behavior based on that status.  The distinction is between legislating "against the sin" and legislating "against the sinner."  Legislation against the sin is permissible, because it attacks conduct and does not set up a class structure.  Legislation against the sinner is impermissible, because it attacks status and sets up a class structure.  For this reason, Bowers is -- thus far -- still the governing law as far as the statute before the Court now is concerned.

It is true that the "animosity" language in the last few paragraphs of Romer is somewhat misleading, because the Georgia statute can be classified as based on animosity just as the Colorado amendment was.  And Justice Scalia is right in pointing out that the amendment could conceivably be based on ideas about sexual morality, found to be a legitimate justification for the statute in Bowers.   Probably the best response to Romer's discussion of animosity is to link the animosity with the ad hominem nature of Amendment 2, in contrast with the "ad actum" nature of the statute here.  The Colorado Amendment effectively says "no protection for homosexuals," which is animosity directed against a group of persons.  The Georgia statute, though, says "no protection for homosexual sex," which is 'animosity' only against an act.

This latter sort of animosity is tolerated all the time.  "No protection for murder," for example, is obviously legitimate, even though "No protection for people who want to commit murder" is obviously not.  The former attacks action; the latter persons. Or consider, "No protection for underage drinking," an entirely different kind of animosity from "No protection for underage kids who say they want to drink." Obviously, there is a clear distinction between legislating against -- and even hating -- an act (Bowers) and legislating -- and hating -- an actor (Romer).  There is no way for a "good gay citizen" of Colorado to escape the hatred of the state, but any gay citizen can escape the hatred of the state of Georgia (in principle) by abstaining from criminal acts.

It must be granted that this last point begs a further question, namely, to what extent there really is  a difference between legislating against the sin and legislating against the sinner, when the "sinner" is entirely defined by the sin.  Put differently, there is an argument that a law criminalizing sodomy essentially criminalizes homosexuality -- which Romer’s analysis would find unconstitutional.  However, what this argument actually puts forth is a kind of "disparate impact" test for sex crimes.  Obviously, a law against homosexual sodomy (or a law against sodomy enforced only in cases of homosexual sodomy) is going to affect homosexuals much more than heterosexuals.  But it does not treat homosexuals differently; a heterosexual caught "experimenting" would be subject to the same penalties as a homosexual, for instance.  It only has a greater impact on those who find themselves oriented towards homosexual sex.

Such a discussion of impact ought not arise when there is a "suspect classification" -- and thus far, sexual orientation is not that.  Nor should it arise when dealing with a statute that need only be rationally related to a legitimate purpose -- which the present statute (for the moment) is.  Absent actual discrimination against a class of citizens, not a group of ordinary citizens who engage in certain acts, the Georgia statute is permissible under Romer.

So much for Petitioner’s arguments.  Bowers still stands, after Romer.  As a postscript, however, I wish to suggest an alternative rationale for striking down the statute while still preserving the integrity of Bowers under the doctrine of stare decisis.  Stare Decisis, as enunciated in Casey and elsewhere, requires this Court to respect its prior rulings unless the relevant fundamental facts have changed, or there is unanimous agreement that the earlier rule was wrong, or the ruling in question clearly represents and aberrant departure from a larger set of doctrines. In the instant case, there is still today as much debate over matters of "sexual morality" as there was in 1985, or as there was about abortion when Casey was decided.  We cannot say that the rule in Bowers is unanimously agreed to be wrong.

But a fundamental fact at issue in Bowers has changed.  The Bowers court stated that "No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated . . . ."  Bowers, 478 U.S. at 191.  Since homosexual activity did not fall into one of the earlier established protected categories of the Supreme Court’s "right to privacy" jurisprudence, the Court proceeded to determine whether sodomy itself was a protected right, and decided that it was not. We may set aside the questionable nature of this reasoning, and in fact leave it standing, because today, unlike 1985, there is a well-established connection between homosexual activity and the family.  One state has recognized the validity of homosexual marriage.  Homosexual partners are routinely given family benefits by corporations ranging from IBM to the ordinarily conservative Disney corporation.  Homosexual families have found their way even into the world of popular culture.  The relevant facts have changed: in 1997, unlike 1985, homosexual activity is intimately connected to family.

As such, we need not play games with animosity, legislating against sins, and so on, because homosexual activity is part of familial intimate relations protected by a "zone of privacy."  As such, the Georgia statute must survive strict scrutiny, and Georgia’s mere interest in promoting sexual morality cannot suffice.  That Petitioners in this case were not engaged in family relations is also no excuse for the law, because the law must show a "tight fit" between the conduct prohibited and the interest at stake; it would not matter if the defendants in Griswold v. Connecticut or Roe v. Wade were not themselves married, or involved in procreation.  The statute itself is unconstitutional.

The relevant change between Bowers and the present moment is not Romer but the change in relationship between homosexual activity and family life.  In 1985, it was still plausible to claim that there was no connection between the two.  But in 1997, such a claim is, "at best, facetious."  Bowers, 478 U.S. at 194.

For these reasons, but not for the structural justice reasons discussed in Romer, the statute should be struck down as unconstitutional and the ruling of the Appeals Court REVERSED.
 

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