Little more than a decade has passed since the Supreme Court concluded, in Bowers v. Hardwick,¹ that state sodomy laws, at least when directed against homosexual sodomy, are constitutionally permissible on the grounds that: (1) our legal tradition recognizes no fundamental right to engage in homosexual sodomy, and (2) courts have always respected the principle that local electorates have a right to implement legal sanctions to enforce majoritarian moral judgments.² In terms of the internal logic of Byron White’s majority opinion, and with respect to the damage which this decision did to the philosophical integrity of the Constitution as a living document, Bowers was arguably one of the worst pieces of judicial reasoning handed down from the Supreme Court bench in this century. Like it or not however, Bowers effectively cleared the way for state governments and both state and federal courts to indulge themselves in directing gratuitous legislative or judicial venom against lesbians, gay men, and bisexuals. More recently, in response to Bill Clinton’s abortive attempt to integrate gays in the military more openly, and to the prospect of legalization of same-sex marriages in Hawaii, Congress has gotten in on the act as well.

For anyone convinced that sexual orientation ought to be included among the suspect classifications afforded constitutional and statutory protection, the manner in which the public policy debate has played itself out since Bowers has been a wild ride. Some observers have been concerned that individual attempts to seek legal reform, usually through the courts, are more likely to backfire than to succeed, inviting unwanted attention from homophobic or opportunistic legislators who then seek to codify anti-gay sentiment aroused by the original reform effort. There is considerable evidence to support this thesis.

Michael Hardwick’s initial decision to take his case to the federal courts, despite the fact that his original arrest for homosexual sodomy was never prosecuted, certainly seems to have had this effect. In the first instance, of course, this action had the sad consequence of creating a national judicial precedent, where none had existed before, for the constitutional permissibility of local laws prohibiting homosexual relationships. But Bowers has also had numerous more subtle adverse effects, as have a number of other well-intentioned reform efforts. The following sections survey some of the main developments that have unfolded in four different areas since Bowers.

A. Adoption & Child Custody Laws

The Bowers decision’s most pervasive influence, in all areas of civil rights law, has been the unstated implication that, if it is constitutionally permissible to criminalize homosexual conduct, then discrimination against homosexuals is legitimate governmental practice. We routinely impose legal restrictions on criminals, as a class, that would foster successful litigation on constitutional due process or equal protection grounds,³ if directed against any other distinctive class of citizens:

If homosexual conduct may constitutionally be criminalized, then homosexuals do not constitute a suspect or quasi-suspect class entitled to greater than rational basis scrutiny for equal protection purposes.⁴

In the areas of adoption law and child custody decisions, some judges and legislators have reasoned that, in jurisdictions which criminalize homosexual conduct, there is no reason to extend the privilege of adoption to members of the criminal class, or even to respect the fundamental right of (biological) parents "to marry, establish a home, and bring up children,"⁵ in such cases. Thus, in a 1986 Arizona appellate adoption case, a bisexual man petitioning to become an adoptive parent was declared to be an unsuitable candidate (despite the positive recommendation of a social service caseworker), partly on the ground that it:

would be anomalous for the State on the one hand to declare homosexual conduct unlawful and on the other create a parent after that proscribed model, in effect approving that standard, inimical to the natural family, as head of a state-created family.⁶

State legislatures in New Hampshire⁷ and Florida⁸ have also taken advantage of the latitude afforded by Bowers to prohibit adoption by prospective homosexual parents by statute, and several other states have ongoing efforts underway to pass such legislation.⁹

Because families which emerge from legal adoption proceedings are "state-created" entities, approval of adoption petitions has always been regarded as a privilege rather than a right. But the reverse is the case when the State considers terminating or restricting pre-existing parent-child rela-tionships, especially biologically grounded ones (see note 5). Consequently, the situation governing child custody law is even more disturbing. Even before Bowers, judges were often predisposed to resolve custody disputes between divorced or separated parents in favor of a heterosexual parent over a homosexual one, regardless of any other merits of the case. If the heterosexual claimant was deemed to be even marginally acceptable on other grounds, sexual orientation frequently served as a judicial trump card, even when judicial decisions historically favored the maternal bond: "we cannot lightly dismiss the fact that living in the same house with their mother and her [female] lover may well cause the child to >suffer from the slings and arrows of a disapproving society.’"¹⁰

Since Bowers however, more egregious cases have emerged, the most notorious being that of Sharon Bottoms, whose 2-year old son Tyler Doustou was awarded to his maternal grandmother, Kay Bottoms, despite support for Sharon Bottoms’ custody claim from her ex-husband, Tyler’s biological father. Sharon Bottoms and Dennis Doustou separated (and subsequently divorced) in 1991, while she was pregnant with Tyler. The following year she began living with April Wade, voluntarily sharing child care responsibilities with her own mother during this period for economic reasons. When she informed her mother, in January, 1993, that she would no longer be leaving her son in Kay Bottoms’ care because she considered her mother’s new boyfriend to be a bad influence on Tyler, Kay Bottoms petitioned the local juvenile court for legal custody. The subsequent ruling in Kay Bottoms’ favor was upheld at the county circuit court level the following September, with presiding judge Buford Parsons asserting that his ruling was based partly on a 1985 Virginia Supreme Court decision that homosexuality, as a violation of Virginia’s sodomy law, was a legitimate reason for losing custody:

Sharon Bottoms has. . . admitted. . . that she is living in an homosexual relationship. . . I will tell you first that the mother’s conduct is illegal. . . I will tell you that it is the opinion of this court that her conduct is immoral. And it is the opinion of this court that the conduct of Sharon Bottoms renders her an unfit parent.¹¹

Parsons claimed that he was basing his decision on other circumstances in the case as well, but there is scant evidence to support that. A June 1994 Virginia Court of Appeals decision overturned Parsons’ ruling on the ground that he based his decision solely on Sharon Bottoms’ sexual orientation.¹² Even though the Virginia Supreme Court reversed the decision yet again ten months later in a 4-3 ruling, the dissenting opinion contended that "There is no evidence in this record showing that the mother’s homosexual conduct is harmful to the child."¹³ Such judicial disunity, at two distinct appellate levels, strongly suggests that, were it not for the issue of sexual orientation, the standard presumption in favor of the parent would have carried the day.

In a more recent Florida case, the First District Court of Appeal upheld Judge Joseph Tarbuck’s 1995 Escambia County Circuit Court decision to transfer custody of Mary Ward’s 11-year-old daughter to her former husband, Frank Ward (since remarried), who had been convicted two decades earlier of murdering his first wife. In the absence of evidence of any improper conduct in Mary Ward’s home, where she lived with her lesbian lover and two older daughters, the subtext seemed to be that, in the choice between "criminal" parents, a reformed second-degree murderer is preferable to an unreformed homosexual.¹⁴

B. Employment Discrimination: Gays in the Military

Employment discrimination on grounds of sexual orientation has flourished since Bowers. In the area of public employment, significant protection under Fifth and Fourteenth Amendment due process and/or equal protection grounds, or under First Amendment free speech and/or freedom of association grounds, was afforded to gay, lesbian, and bisexual civil service employees long before Bowers, but the same was not true for military employment or jobs requiring a security clearance. In the area of private employment, which does not enjoy these constitutional protections, prospects have been much bleaker. In the past, homosexual and bisexual plaintiffs have been obliged to rely largely on federal statutory remedies through Title VII of the 1964 Civil Rights Act, with virtually no success. Indeed, after repeated failures in the seventies and early eighties, victims of private sector job discrimination have abandoned the strategy of trying to subsume sexual orientation discrimination under gender discrimination, and efforts to amend Title VII by adding sexual orientation as a protected characteristic have consistently failed.

To this stew Bowers has added the weight of the Supreme Court’s authority in support of the thesis that homosexuals do not count as a suspect class (unlike, e.g., blacks or hispanics subjected to discriminatory governmental policies or statutes, whose complaints are then subject to strict judicial scrutiny), or as a quasi-suspect class (unlike women, discriminatory policies against whom may be subjected to heightened judicial scrutiny). Therefore judicial review of public sector discrimination claims brought on grounds of sexual orientation does not require that the disputed policy must be "precisely tailored to" or "the least intrusive means of" achieving "a compelling governmental interest." Nor does the policy have to be "substantially related to" achieving "an important governmental interest."¹⁵ Instead, the much weaker rational basis standard of review will suffice in sexual orientation discrimination cases. Under this standard, courts need only determine whether governmental action is "rationally related to a legitimate governmental purpose,"¹⁶ a requirement which has often been construed as requiring almost total judicial deference to legislative or executive branch initiatives.¹⁷

Although Bowers rejected reliance on heightened judicial scrutiny only for due process cases, appellate courts have been fairly consistently comfortable with the idea of extending that logic to equal protection pleas. In Padula v. Webster, a 1987 D.C. Circuit case decided in the shadow of Bowers, the court majority reasoned that, if the Supreme Court chose not to object to state laws that criminalize the behavior that "defines" homosexuals as a class, then "it is hardly open to a lower court to conclude that state sponsored discrimination against the class is invidious."¹⁸ Therefore the D.C. Circuit declined to apply strict or even heightened equal protection scrutiny to the FBI’s refusal to hire Padula because she was a homosexual.

The most dramatic area of homophobic employment discrimination in recent years has of course been that exhibited by the U.S. Armed Services. Courts have historically been reluctant to apply the Constitution when military infringements of civil rights are at issue, as I explain in my article on this issue, "Gays in the Military and the Excuse of Constitutional Deference." But when Bill Clinton attempted to use his authority over the Armed Forces to reform exclusionary enlistment and retention practices with respect to sexual orientation, Congress retaliated by supplanting existing administrative law (drafted and subject to revision by the Executive Branch) with legislative authority: statutory provisions designed to perpetuate indefinitely the past discrimination directed against gay and lesbian soldiers, sailors, and pilots. The resulting law, forged early in Clinton’s first term, was billed as a compromise, tolerating the continued presence of "cooperative" lesbian and gay military personnel: "Don’t Ask" (military personnel about their sexual orientation), "Don’t Tell" (ones superiors or peers about ones [unorthodox] sexual orientation), "Don’t Pursue" (those who keep their sexual orientation in the closet). The actual effect of the "new" policy, however, has been a steady increase in military discharges for homosexuality, reaching a five-year high of 850 in 1996, and still climbing.¹⁹

Like the Bowers decision, the codification of the existing military policy governing homosexual personnel has had a much broader ripple effect, encouraging similar behavior in other governmental arenas, together with anti-gay agitation by some factions of the general electorate. Reactions in South Carolina are probably not atypical in this regard, at least among politically conservative states. Early in 1994, shortly after the national "Don’t Ask, Don’t Tell" policy was enacted by Congress, the SC State House attempted to surpass Congressional homophobia by voting 92-20 to prohibit homosexuals from serving, even anonymously, in the SC National Guard or State Guard. On the same date, the State House passed, by an even larger margin, the first of the ongoing series of bills offered to prohibit homosexuals and bisexuals from adopting children.²⁰ Both bills subsequently died in senate committees, but that hasn’t cooled political ardor for such measures here.

Later that same year, SC Attorney General candidate Charles Condon, running for statewide office for the first time, made a gratuitous promise to work to prevent gays and lesbians from adopting children, declaring that: "I believe that homosexuals ought not to be able to adopt children in South Carolina."²¹ When I subsequently called his campaign office for clarification of his position, his campaign manager assured me that Condon harbored no ill will towards homosexuals, that he was only reassuring voters that he would take his job seriously as head of state law enforcement, making a promise to exercise his responsibility to enforce existing laws. His campaign manager could not tell me, however, precisely what laws he proposed to enforce with this particular promise.

After determining that there were neither statutory nor constitutional provisions prohibiting such adoptions, I called back to inquire again what laws Condon was intent on enforcing. This time a Condon staffer suggested that he must have been referring to case law. I did some further digging, and could find no relevant case law (going back to the beginning of this century).²² The reality behind Condon’s promise, of course, was something quite different: his perception of the political opportunity for securing substantial anti-homosexual support among South Carolina voters who had become both indignant over the national debate about gays in the military, and fearful of the prospect of increased legal tolerance for homosexual relationships.²³

C. Employment Discrimination: Ballot Initiatives

Charles Condon’s brand of political opportunism is hardly unique in the wake of Bowers, which effectively announced a federal judicial policy of tolerance of such behavior. In South Carolina, Condon is simply the first statewide office-holder to take advantage of the growing level of intolerance which has accompanied agitation for gay rights. In fifteen other states to date,²⁴ such appeals to the electorate have taken the form of state and local ballot initiatives designed to preempt or reverse policies which would afford sexual orientation the same kind of protected status already constraining government laws (or practices) which differ-entiate groups along ethnic, racial, religious, or gender lines. The only successful effort to amend a state constitution along these lines was the relatively early initiative passed by Colorado voters in 1992.²⁵ Maine voters rejected a similar initiative in 1995, and referenda petitions to place the same issue before voters in Washington, Oregon, and Idaho were undercut before the November 1996 elections by the Supreme Court’s repudiation of the Colorado amendment in Romer v. Evans the previous May.²⁶

In Romer, one of the few encouraging signs that the federal judiciary may be tiring of its role as the custodian of moral orthodoxy in sexual matters, the 6-3 majority ruled that, by excluding an entire class of people from civil rights protections afforded to other groups, Amendment 2 to the Colorado Constitution violated the Equal Protection Clause of the Fourteenth Amendment. Moreover, this conclusion did not even require the application of heightened judicial scrutiny. The rational basis standard was sufficient to conclude that such a sweeping exclusion was inexplicable on any basis other than animus. The significance of this decision, and its reliance on the rational basis standard, is discussed at length by Toni Massaro in her article in this issue.²⁷

Two points are worth noticing at the outset, however. (1) as an equal protection case, Romer does not constitute a clear repudiation of the precedent set in Bowers, a due process case. Moreover, Romer does not acknowledge that gays and lesbians are actually entitled to protected status, any more than Bowers did. Romer simply rejects the thesis that any group can be completely excluded from constitutional protections afforded to others. Nonetheless, (2) Romer does raise serious questions about the Court’s level of enthusiasm for continued support of the Bowers precedent. While it is true that anti-sodomy laws are much less "global" measures than constitutional initiatives circumscribing the scope of civil rights, it’s hard to see how to distinguish the motivations behind the two kinds of measures. Both can be fairly characterized as local efforts to maintain traditional morality, and both are equally subject to the charge of irrational animus.

D. Same-Sex Marriage

The fourth major arena in which the debate over legal rights for gays and lesbians has been played out is perhaps the most heated. Although efforts to secure judicial or legislative recognition of same-sex marriages go back over three decades,²⁸ the first serious threat to the heterosexual monopoly on the legal institution of marriage came in 1993, when the Hawaiian Supreme Court ruled, in Baehr v. Levin,²⁹ that a state law restricting marriage to opposite-sex couples constituted sex-discrimination as defined by the Hawaiian Constitution. In December, 1996, Honolulu Circuit Judge Kevin Chang declared (on remand) that the State had failed to identify any compelling interest for its prohibition of same-sex marriages: the argument offered, that heterosexual couples make better parents than homosexual couples, he found completely unsupported by available empirical data.³⁰ Consequently, Chang ordered state officials to stop denying marriage licenses to same-sex couples, accompanying his order with a stay pending state supreme court evaluation of his ruling.

A reluctant Hawaiian legislature first responded to these judicial developments by specifying that Hawaiian marriage law referred only to heterosexual unions. But the legislature also recommended that the governor appoint a Commission on Sexual Orientation to study the issue. Convened in August, 1995, this commission recommended the legalization of same-sex marriages in January, 1996. The legislature chose, however, to ignore its own commission’s primary recommendation in favor of a secondary one: to draft a comprehensive domestic partnership law, extending to homosexual couples the same set of spousal benefits that married heterosexual couples already enjoy in Hawaii. This bill was signed into law by Hawaii’s governor in July, 1997. On its own however, Hawaii’s new domestic partnership law would become unconstitutional under the Hawaiian Supreme Court’s anticipated confirmation of Chang’s order. To address this problem, the Hawaiian legislature has arranged to offer state voters an opportunity to vote on a constitutional amendment to install a specific ban on same-sex marriage in the Hawaiian Constitution. Public opinion polls indicate that 70% of Hawaiian voters would support such an amendment.³¹

Like Bowers and the "Don’t Ask, Don’t Tell’" policy, events in Hawaii are having a much broader negative impact on the movement to extend full legal rights to lesbians and gays. Anticipating the possibility that judicial review might eventually compel other states to recognize same-sex marriage licenses issued to transplanted Hawaiian couples, or even to local couples flying out to Hawaii for a marriage ceremony, over half the states have made efforts to enact legislation declaring such marriages void. Thus far, such measures have become law in eight states.³²

In a completely gratuitous, mean-spirited, politically-motivated gesture, Congress got into the act in the summer of 1996, passing the "Defense of Marriage Act" (DOMA), giving the states permission to refuse to recognize same-sex marriages authorized by another state.³³ But as Larry Kramer has pointed out recently, such a measure is redundant insofar as the states have for years been invoking a judicially tolerated public policy exception to the constitutional requirement that: "Full Faith and Credit shall be given in each State to the public Acts. . . of every other State."³⁴ Moreover, Kramer goes on to argue that there is a serious, if neglected, question about the constitutionality of the public policy exception when applied by one state against another state (as distinct from a foreign power).³⁵ In this light, DOMA is also a form of legislative usurpation of the federal courts’ authority of judicial review: it is not for Congress to decree what is or is not constitutionally permissible state action.

Finally, the debate over same-sex marriage has its share of opponents among the advocates of greater recognition of homosexual rights generally, on grounds that marriage has historically been an oppressive institution, designed to reinforce patriarchal patterns of dominance within our culture, and therefore homosexuals do not need to buy into that pattern of oppression in order to secure legitimacy for their intimate relationships.³⁶ On this view, the domestic partner-ship approach recently endorsed by Hawaii’s state legislature is actually the desirable outcome. On the other hand, it can also be argued that the virulence of mainstream opposition to same-sex marriage is fueled less by abhorrence to the very idea of such a union than it is by fear of further confounding the traditional legal conception of the respective roles of men and women within heterosexual marriages, and thus undermining the residual oppressive aspects of existing marriage laws.³⁷

David Benatar’s article in this issue, a discussion of the legal strategy of analogizing laws prohibiting same-sex marriages with past allegations of race discrimination in laws which prohibited interracial marriages, serves as a novel example of this kind of philosophical speculation about the social implications of particular kinds of arguments for homosexual rights (through his examination of an inconsistency between the resulting sex discrimination argument and toleration of the practice of maintaining single-sex public toilets).

E. Conclusion

With the exception of Romer v. Evans, the pattern emerging in this review of the public policy debate over legal rights for lesbians, gays, and bisexuals has been depressingly negative. Efforts to advance this cause have repeatedly backfired, transforming repressive but informal administrative practices into explicit, and arguably more permanent, legislative code or judicial decree. But the reality is probably not nearly so bleak. Although the American electorate may be fundamentally conservative, especially in the areas of sexual morality, child-rearing, and the distribution of social roles by gender, the moderate successes of feminist reform movements demonstrate that these traditional attitudes are not immune to change.

More importantly, American conservatism is also often accompanied, and ameliorated, by a basic sense of fairness. Each vindictive homophobic legislative initiative, each repressive judicial decree, raises the consciousness of more citizens to the patent unfairness of the reactionary behavior of many of our political leaders. The same thing happened in the late sixties, after the civil rights movement to secure real legal equality for black Americans had initially provoked racist retaliation, some of it overtly sponsored, or even initiated, by state and local institutions of government. In the long run, such behavior served, inadvertently, to promote sympathy for the cause it attacked.

The movement for expanding the scope of civil rights for homosexuals and bisexuals is undergoing a similar trans-formation in public consciousness today, and the effects are already being felt in our legal system. The recent judicial decisions in Hawaii are a case in point, as are some lower court decisions concerning the prohibition against gays and lesbians serving in the military-a telling development in light of the tradition of extreme judicial deference towards military policy (see my article below). And while it is true that state or local jurisdictions in fifteen states have attempted to introduce anti-gay ballot initiatives during the homophobic post-Bowers political climate, seven other states, and the District of Columbia, have joined Wisconsin in adding sexual orientation to their respective antidiscrimination statutes.³⁸ Universal reform measures on these issues are just a matter of time. How much time, I think, will be inversely proportional to the level of virulence of the opposition: change will come more rapidly if homophobic or opportunistic opponents in positions of political authority react more unreasonably.

1. 478 U.S. 186 (1986).

2. In constructing his majority opinion around the claim that the case concerned an alleged right to engage in homosexual sodomy, Byron White ignored the fact that the Georgia sodomy law at issue was directed equally at heterosexual sodomy. Harry Blackmun, dissenting, argued that the court majority was deliberately pursuing its own ideological agenda by framing the issue in a way that completely ignored the facts of the case. He contended that there certainly was a fundamental right at issue here, Louis Brandeis’s "right to be let alone"-the previously recognized right of privacy. On Blackmun’s view, White was deliberately ignoring the real issue in order to avoid the otherwise inescapable conclusion that anti-sodomy laws were unconstitutional under existing Supreme Court precedent. (What counts as "unbridled judicial activism" depends a great deal on whose ox is being gored.)

3. Or statutory grounds, such as the protections enumerated in the various provisions and amendments of the 1964 Civil Rights Act.

4. Ben-Shalom v. Marsh, 881 F.2d 454 (1989), at 464, a case in which a 7th Circuit panel reversed prior judicial orders to reinstate Miriam Ben-Shalom in the Army Reserves, after she had been discharged in 1976 for publicly admitting that she was a lesbian. The Supreme Court denied certiorari the following year.

5. Meyer v. Nebraska, 262 U.S. 390 (1923), at 399. More recently, see also Santosky v. Kramer, 455 U.S. 745 (1982), at 399.

6. In re Appeal in Pima County Juvenile Action B-10489, 727 P.2d 830, at 835.

7. N.H. Rev. Stat. Ann. §170-B:4 (1994). "No person eligible to adopt under this statute may adopt if that person is a homosexual."

8. Fla. Stat. ch. 63.042(3) (1995). "Any individual not a minor and not a homosexual may adopt..."

9. Last year bills were introduced in Oklahoma and Washington. Here in South Carolina anti-gay adoption bills have routinely been reintroduced in the State House of Representatives for each pair of sessions since Clinton announced his original proposal to eliminate the prohibition against gays and lesbians serving in the military. The current version, S.C. H3179 (1997-98), would prohibit adoptions or foster parenting by persons with a history of child abuse, or convicted of certain types of crimes, as well as homosexuals and bisexuals. To date, there has been insufficient support for such bills in the S.C. Senate.

10. Jacobson v. Jacobson, 314 N.W.2d 78 (1981), at 81 (North Dakota case). See also, e.g., S. v. S., 608 S.W.2d 64 (1981), at 66 (Kentucky Court of Appeals); Roe v. Roe, 228 Va. 722 (1985), at 723-24; Thigpen v. Carpenter, 730 S.W.2d 510 (1987), at 513 (Arkansas Appellate Court). In a 1987 Missouri Court of Appeals case, G.A. v. D.A., 745 S.W.2d 726, at 728, a dissenting justice accused the majority of creating an irrebuttable presumption against awarding custody to homosexual parents.

11. Reviewed in Bottoms v. Bottoms, 457 S.E.2d 102 (1995). For the relevant Virginia Supreme Court precedent, see Roe v. Roe, supra note 10.

12. Bottoms v. Bottoms, 444 S.E.2d 276 (1993).

13. Bottoms v. Bottoms, supra note 11. The Virginia Supreme Court did remand the case to the Henrico County Circuit Court for further consideration of some issues. But after Parsons reaffirmed his earlier decision last year, Sharon Bottoms finally gave up her frustrating four-year battle with the Virginia courts.

14. Navarro, Mireya. "Lesbian Loses Court Appeal for Custody of Daughter," New York Times, Aug. 31, 1996, A7. One of Mary Ward’s older daughters was also a lesbian, with a live-in girlfriend, a factor which probably also influenced the Court (perhaps by lending some credibility to unwarranted stereotypes about potential influence on the sexual orientation of a child). John Ward submitted his original petition for custody shortly after Mary Ward had filed for increased child support. Although Mary Ward planned to take her appeal to the Florida Supreme Court, she died of a heart attack in January, 1997.

15. For the language of strict scrutiny, see Palmore v. Sidoti 466 U.S. 429 (1984), at 432. For heightened scrutiny, see Craig v. Boren 429 U.S. 190 (1981), at 197 (the first case in which this "intermediate tier" standard of review was invoked).

16. Kadrmas v. Dickinson Public Schools, 108 S. Ct. 2481 (1988), at 2487. See also Royster Guano Co. v. Virginia, 253 U.S. 412 (1920): "the classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike."

17. See, e.g., Williamson v. Lee Optical, 348 U.S. 483 (1955), upholding a state law requiring Oklahoma residents to get new prescriptions from an optometrist or an ophthalmologist before going to an optician for a new pair of glasses, even to replace a broken pair; or Ferguson v. Skrupa, 372 U.S. 726 (1963), upholding a state law barring anyone other than licensed attorneys from engaging in the business of debt-adjustment. (Attorneys charge much higher fees for this service than other perfectly well-qualified providers.) In the latter case, Hugo Black, writing for a unanimous court, declared that "it is up to the legislatures, not the courts, to decide on the wisdom and utility of legislation." But in recent years even the rational basis standard is beginning to show signs of developing some teeth. (This is the main focus of Toni Massaro’s article in this issue.)

18. 822 F.2d 97, at 103. The conflation between homosexual status (a sustained emotional disposition, homosexuality as a species concept) and homosexual conduct (acts of a sexually intimate nature between same-sex partners) inherent in the Padula reasoning was explicitly endorsed in Steffan v. Perry, 41 F.3d 667 (1994), at 686, 690-96. In this 6-3 en banc decision by the D.C. Circuit, rejecting former midshipman Joseph Steffan’s challenge against his 1986 forced resignation from the Naval Academy, the majority ruled that Steffan’s admission of his sexual orientation (in response to a Naval Academy official’s direct question) could reasonably be construed as an admission of illicit conduct.

For other Federal appellate examples of the Padula reading of Bowers as a global rejection of heightened judicial scrutiny in sexual orientation cases, see Woodward v. United States 871 F.2d 1068 (1989), at 1070; and Equity Foundation of Greater Cincinnati v. Cincinnati 54 F.3d 261 (1995), at 268.

19. This figure is the result of a study done by the Servicemembers Legal Defense Network. See "An Assault on Gays in the Military," Boston Globe, 3/8/97; or Philip Shenon, "New Study Faults Pentagon’s Gay Policy," New York Times, 2/26/97, A10. The previous year, the first full year under implementation of the new policy, saw an increase of 17% in the number of Service personnel discharged for homo-sexuality. See Philip Shenon, "When >Don’t Ask, Don’t Tell’ Means Do Ask and Do Tell All," New York Times, 3/3/96, '4, 7. This development was, in fact, readily predictable. See the discussion of the policy in my article in this issue.

20. Sid Gauldin, "House Votes to Ban Gays from Guard," Charleston Post & Courier, 1/14/95. See also note 9, supra.

21. Schuyler Kropf, "Attorney General Candidates Say Office More Than Fighting Crime," Charleston Post & Courier, 4/22/94.

22. Given prevalent attitudes about homosexuality in South Carolina, this lacuna is actually unsurprising: an adoption petition from someone who was openly homosexual in this State was simply unthinkable prior to this decade’s increasingly public debate about homosexual rights.

23. Condon has continued to mine this vein since he assumed office, drafting a very public amicus brief for the Colorado side in Romer ("Condon Interested in Anti-Gay Initiative," Charleston Post & Courier, 6/4/95); supporting the State Legislature’s preemptive move to refuse to recognize same-sex marriages that might soon be ratified in Hawaii (see discussion below, and Sid Gauldin, "Condon Opinion Supports Banning Same-Sex Unions," Charleston Post & Courier, 4/13/96, 1-B.); and withdrawing his initial support for a state hate-crimes bill when it became apparent that such a law would have to include provisions against homophobically motivated crimes. (See John Heilprin, "Gay Rights Doomed Hate Crimes Bill," Charleston Post & Courier, 7/20/97, 6-B.)

24. Arizona, California, Colorado, Florida, Georgia, Idaho, Iowa, Maine, Michigan, Minnesota, Missouri, Montana, Ohio, Oregon, and Washington.

25. Commonly referred to as Amendment 2, the text reads: "Neither the State of Colorado. . . nor any of its agencies, political subdivisions, municipalities, or school districts, shall enact, adopt, or enforce any statute, regulation, ordinance, or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination."

26. 116 S. Ct. 1620 (1996).

27. Massaro’s article is a distillation of the main points in her much longer recently published law review article: "Gay Rights, Thick and Thin," Stanford Law Review 49 (1996), 45-110. She advocates a rational basis approach to litigation concerning gay and lesbian rights as the most promising strategy to pursue. But her article below also provides an informative summary introduction to, and critique of, the variety of other legal strategies which have been used over the past couple of decades.

28. See, e.g., Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), in which the Minnesota Supreme Court upheld the State’s refusal to grant a marriage license to a same-sex couple [certiorari denied at 409 U.S. 810 (1972)]. See also Adams v. Howerton, 486 F. Supp. 1119 (1980), ruling that a State could refuse to permit same-sex marriages even though the California Legislature had not expressly prohibited them (on the theory that >marriage’ traditionally means a union between a man and a woman).

29. 852 P.2d 44, 74 (1993).

30. Baehr v. Miike, Civ. No. 91-1394, West Law 694233.

31. "Hawaii’s Same-Sex Couples Get Marriage Benefits," Charleston Post & Courier, 7/6/97, 3-A (AP wire service story), and "Hawaii Ponders Marriage for Gays," Charleston Post & Courier, 1/22/96, 5-A (AP wire service story).

32. Louisiana led the way, enacting its law in 1993. Arizona, Utah, and Virginia followed suit in 1995, and Connecticut, Delaware, Illinois, and South Carolina in 1996. With an unerring sense of political theater, David Beasley, South Carolina’s governor, seized the opportunity to sign South Carolina’s prohibition against same-sex marriages into law on the same day the Supreme Court threw out Colorado’s homophobic civil rights amendment. (See Gary Karr, "Governor Signs Ban on Same-Sex Unions," Charleston Post & Courier, 5/21/96, B-1.)

33. Pub. L. No. 104-199, ' 2(a), 1996.

34. U.S. Constitution, Art. IV, ' 1.

35. "Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception," Yale Law Journal 106 (1997), 1965-2008. See Recent Law Review Articles of Interest section below.

36. See, e.g., Nancy D. Polikoff, "We Will Get What We Ask For: Why Legalizing Gay and Lesbian Marriage Will Not Dismantle the Legal Structure of Gender in Every Marriage," Virginia Law Review 79 (1993), 1535-50.

37. For a brief discussion of this issue, see Recent Law Review Articles of Interest section below, the entry on David Chambers, "What If? The Legal Consequences of Marriage and the Legal Needs of Lesbian and Gay Male Couples," Michigan Law Review 95 (1996), 447-91.

• From the Editor
• Introduction
  • Legal Aspects of Gay and Lesbian Rights, Richard Nunan
• Articles
  • Thick and Thin Arguments for Gay Constitutional Rights, Toni M. Massaro
  • Same-Sex Marriage and Sex Discrimination, David Benatar
  • Gays in the Military and the Excuse of Constitutional Deference, Richard Nunan
• Bibliography
• Recent Law Review Articles of Interest- Abstracts
• Symposia
• Recent Books of Interest