• As recently as 1986 case Bowers v. Hardwick, Supreme Court upheld state laws outlawing gay sex
• In 1996 case Romer v. Evans, however, Supreme Court overturned a law banning protections against anti-gay discrimination, ruling the law had no rational basis
• In 2003 case Lawrence v. Texas, Supreme Court overturned Texas law banning gay sex, ruling it had no rational basis

As recently as 1986, the Supreme Court took an overtly hostile stance toward homosexuality. In Bowers v. Hardwick, the Court ruled that state "morals legislation"—including anti-sodomy laws, which criminalize gay sex—were constitutional. In defending the power of states to pass laws that criminalized homosexual acts, Justice Warren Burger noted that "condemnation of [homosexual activity] is firmly rooted in Judeo-Christian moral and ethical standards." And he even cited (rather provocatively) the eighteenth-century legal scholar, William Blackstone, in support of his twentieth-century conclusion. "Blackstone described 'the infamous crime against nature' as an offense of 'deeper malignity' than rape, a heinous act 'the very mention of which is a disgrace to human nature,' and 'a crime not fit to be named.'"⁴¹

But just ten years after using such harsh language to describe homosexuality, the Court took an entirely different approach in striking down Colorado's "Amendment 2," which forbade local governments from drafting legislation protecting gays against discrimination. In Romer v. Evans, the Court applied the Lindsley (or rational basis) test and concluded that Amendment 2 failed to meet even this simple standard. The Court held that singling out one group of people and then declaring that cities could not extend protection to them served no rational government purpose; Colorado's law was thrown out.

At the time, some felt that the Court should have gone even further in defining the rights of gays and lesbians under the Constitution. But scholars like Joe Bergeron noted that even though the decision was framed narrowly, Romer v. Evans marked the first instance in which the Court acknowledged gays' sexuality as "a legitimate component of one's identity." Moreover, for the first time, the Court identified gays and lesbians as a "bona fide legal entity in need of protection."⁴²

The new stance of the Court was reflected further in 2003 when it considered, as it had in Bowers, the legitimacy of "morals legislation." This time, applying the logic advanced in Romer rather than the beliefs of William Blackstone, the Court overturned Texas's anti-sodomy law because it could find no rational state interest in singling out a group of people for criminal punishment over their private sexual activities. Once again, the decision was narrowly framed. But once again, the Court had identified gays and lesbians as a distinct category of people entitled to legal protection.

What Will the U.S. Supreme Court Do?

You mean, what did the U.S. Supreme Court do.

In 2015, the court decided in a 5-4 vote that same-sex couples have the right to be married under the 14th Amendment to the Constitution. Looking for more on that? Check out our discussion of the Obergefell v. Hodges decision in "Same-Sex Marriage & the 14th Amendment."