There are three possible outcomes to the Texas gay sodomy case. Which outcome would be the best for gays?

Obviously, the worst result for gays would be if the Supreme Court upheld the Texas Homosexual Conduct law, affirming the status quo. States would continue to be free to outlaw gay sodomy and discriminate against gays. We’d gain nothing. The power of Romer v. Evans (which struck down an anti-gay state amendment in 1996 on the basis that “animus” was not a good enough reason to discriminate against gays) would be weakened, or at least greatly circumscribed.

But what if the Supreme Court strikes down the law, which is very possible? It can do so on one of two bases. Which basis would be the best for us?

One, the Court could strike down the law on the basis of privacy. This would strike down the anti-sodomy laws in all of the 13 states that still outlaw sodomy for everyone. (Note that “sodomy” means not just anal sex but also oral sex.)

Two, the Court could strike down the law on the basis of equal protection. This would strike down the anti-sodomy laws in the four states that ban only homosexual sodomy (Texas, Oklahoma, Kansas and Missouri), but it would leave in place the laws in the nine remaining states that outlaw all sodomy.

Which would be better for gays: the privacy basis or the equal protection basis?

If the Court used the privacy argument, it would mean, simply put, that the government would have to stay out of our bedrooms from now on. Adult consensual sex would now be off-limits to governmental regulation. Since there would be no more sodomy laws, there would no longer be an excuse to brand gays as criminals. This would be wonderful.

If the Court used the equal protection argument, nine states’ sodomy laws would be left standing. In those nine states, gays could still be branded as criminals. This would not seem to be as good as the privacy argument.

But maybe the equal protection argument would be the best for gays? Maybe it would be one more precedent to show that governmental entities can’t discriminate against gays? After all, striking down the law on the basis of privacy would sidestep this question, but the equal protection basis would confront it directly, right?

Not necessarily. It’s not likely that the equal protection argument would further bolster the argument that gays should be a protected class under the Constitution. Currently, women and blacks are considered “protected classes” under constitutional equal protection theory; because women and blacks have a history of being oppressed, a governmental entity must have a pretty damn good reason for discriminating on the basis of race or sex, and such laws are subject to “strict scrutiny” or “heightened scrutiny” by the courts. The Supreme Court has never stated that gays are a protected class; this means that if a governmental entity wants to discriminate on the basis of sexual orientation, it need only come up with some rational-sounding basis for the law. It doesn’t have to be a particularly good reason; it just has to have some semblance of logic to it. (In comparison to “strict scrutiny” and “heightened scrutiny,” this is known as the “rational basis” test.)

In their brief to the Supreme Court, Lawrence and Garner’s lawyers (who want to get rid of the sodomy laws) haven’t gone so far as to argue that gays should be a protected class under the Constitution or that laws that discriminate on the basis of sexual orientation should be subject to higher scrutiny. Rather, they have argued that even under the more lenient “rational basis” standard, Texas’s Homosexual Conduct law does not pass muster. Texas has said that the purpose of the law is to uphold standards of morality, to express the moral views of the people of Texas, et cetera. Lawrence and Garner’s lawyers have argued that this is just not a legitimate state interest.

This is the argument that worked in Romer, which was decided 6-3, and the exact same nine justices sit on the Court now, so it has a good chance of working in the Texas case. Presumably, if the Court uses the equal protection argument to strike down the law, this will be the basis on which it does it.

Of course, it’s always possible the Court could go out on a limb and use the equal protection argument in this case to enshrine gays as a protected class, but I wouldn’t bet on it.

The best result for gays would probably be if the Supreme Court struck down the law on the privacy basis. Another terrific result would be if the Court struck down the law on the equal protection basis and stated for the first time that gays are a protected class.

Which means that the Court probably won’t use either argument. The Court likes to avoid controversy.

If I had to guess, I’d say that the Court will play it safe and will strike down only the four sodomy laws that discriminate against gays, using merely the “rational basis” version of the equal protection argument — letting other nine states’ sodomy laws stand and still leaving gays as an unprotected class. It’s not the result I’d most prefer, but it’s my guess.

But stranger things have happened, so you never know.
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