“moral fact that a person belongs to himself and not others nor to society as a whole.”’” No greater endorsement of radical individual autonomy or of sentiment more disintegrative of society has ever before been articulated in a constitutional opinion. The family has no value beyond its importance to the individuals in it, which means, if it means anything, that neither the husband nor the wife need stay in the relationship if greater personal gratification is to be found elsewhere, whether through abandonment, adultery, or, if one is finicky, divorce. If the individual belongs only tohimself, moreover, there is no moral obligation to obey the law or to take part in national defense; there is no obligation to family, neighbors, nation, society, or to anything outside one’s own skin.
Ten years later the
Bowers
majority opinion was abandoned in
Romer
v.
Evans
(1996). A few cities in Colorado, reflecting the new political and cultural power of homosexuals, enacted ordinances prohibiting discrimination on grounds of sexual orientation as well as on grounds of race and sex. Even private persons who believe strongly that homosexual conduct is immoral or prohibited by religion were forbidden to act on those beliefs. In a statewide referendum, Coloradans adopted a constitutional provision that precluded local governments from making homosexuals a favored class. The Supreme Court, however, held that this denial of special status to homosexuals violated the Equal Protection Clause of the Fourteenth Amendment. The theory was that homosexuals were impermissibly burdened if they had to secure special protection, equivalent to that afforded racial minorities, at the state rather than the local level. The law could be explained, the Court said, only by animosity toward homosexuals. The opinion closed with the preposterous assertion that the amendment “classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else.”
To the contrary, every constitutional or statutory provision at the state or the federal level does what the Colorado amendment did – it removes from some groups the capacity to alter the law at the local level. Ifone took the Court’s majority’s assertions seriously, as a dissent noted, state constitutional provisions prohibiting polygamy would violate the equal protection principle. Since certain states were admitted to the Union only on condition that they have such prohibitions that could not be revoked without the consent of the United States, would-be polygamists would have to persuade the entire nation, and not simply the voters of a single state. Matters are even worse than that, however. Under what appears to be the majority’s rationale, it is difficult to see how any state or federal statute could be constitutional. They all remove discretion from localities. Since the Court has now held that the denial of special status to homosexuals is unconstitutional,
Bowers
probably must be taken to have been silently overruled.
The Court paused in its normalization of homosexuality in
Boy Scouts of America
v.
Dale
(2000). By the narrowest of margins the Court held that the Boy Scouts, which it called an “expressive association,” have the right under the Speech Clause of the First Amendment to bar an open and activist homosexual from serving as an assistant scout master. Homosexuality was viewed as inconsistent with the morality the Scouts sought to inculcate. The Court overturned the judgment of the New Jersey Supreme Court which required, by strained reasoning, the retention of an assistant scoutmaster under a state law banning discrimination on the basis of sexual orientation in places of public accommodation. The author of the dissenting opinion, Justice Stevens, offered one argument disavowed by the other three dissenters. He called thepopular disapproval of homosexuals “atavistic” and “nourished by sectarian doctrine;” the Boy Scouts’ policy was
Ten years later the
Bowers
majority opinion was abandoned in
Romer
v.
Evans
(1996). A few cities in Colorado, reflecting the new political and cultural power of homosexuals, enacted ordinances prohibiting discrimination on grounds of sexual orientation as well as on grounds of race and sex. Even private persons who believe strongly that homosexual conduct is immoral or prohibited by religion were forbidden to act on those beliefs. In a statewide referendum, Coloradans adopted a constitutional provision that precluded local governments from making homosexuals a favored class. The Supreme Court, however, held that this denial of special status to homosexuals violated the Equal Protection Clause of the Fourteenth Amendment. The theory was that homosexuals were impermissibly burdened if they had to secure special protection, equivalent to that afforded racial minorities, at the state rather than the local level. The law could be explained, the Court said, only by animosity toward homosexuals. The opinion closed with the preposterous assertion that the amendment “classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else.”
To the contrary, every constitutional or statutory provision at the state or the federal level does what the Colorado amendment did – it removes from some groups the capacity to alter the law at the local level. Ifone took the Court’s majority’s assertions seriously, as a dissent noted, state constitutional provisions prohibiting polygamy would violate the equal protection principle. Since certain states were admitted to the Union only on condition that they have such prohibitions that could not be revoked without the consent of the United States, would-be polygamists would have to persuade the entire nation, and not simply the voters of a single state. Matters are even worse than that, however. Under what appears to be the majority’s rationale, it is difficult to see how any state or federal statute could be constitutional. They all remove discretion from localities. Since the Court has now held that the denial of special status to homosexuals is unconstitutional,
Bowers
probably must be taken to have been silently overruled.
The Court paused in its normalization of homosexuality in
Boy Scouts of America
v.
Dale
(2000). By the narrowest of margins the Court held that the Boy Scouts, which it called an “expressive association,” have the right under the Speech Clause of the First Amendment to bar an open and activist homosexual from serving as an assistant scout master. Homosexuality was viewed as inconsistent with the morality the Scouts sought to inculcate. The Court overturned the judgment of the New Jersey Supreme Court which required, by strained reasoning, the retention of an assistant scoutmaster under a state law banning discrimination on the basis of sexual orientation in places of public accommodation. The author of the dissenting opinion, Justice Stevens, offered one argument disavowed by the other three dissenters. He called thepopular disapproval of homosexuals “atavistic” and “nourished by sectarian doctrine;” the Boy Scouts’ policy was
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