Equal Protection and Invidious Intent

in The Gay Rights Question in Contemporary American Law

Published by University of Chicago Press

Published in print July 2002 | ISBN: 9780226451008
Published online March 2013 | e-ISBN: 9780226451039 | DOI:
Equal Protection and Invidious Intent

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Laws that discriminate against gays will always be demonstrably rational, because such laws will always further the state's legitimate moral objection to homosexual sodomy. Thus teaches Bowers v. Hardwick. Laws that discriminate against gays will always be constitutionally doubtful, however, because they will always arouse suspicion that they rest on a bare desire to harm a politically unpopular group. Thus teaches Romer v. Evans. Both of these teachings are coherent, and neither of them is necessarily inconsistent with the other. They leave the courts, however, with a doctrinal dilemma that has no obvious solution. This chapter argues that Romer is defensible in the terms in which it was decided.

Keywords: equal protection; homosexual sodomy; Romer v. Evans; court cases; Bowers v. Hardwick; gays

Chapter.  11967 words. 

Subjects: Constitutional and Administrative Law

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