The Miscegenation Analogy: Sodomy Law as Sex Discrimination
![handle is hein.journals/ylr98 and id is 163 raw text is: Notes
The Miscegenation Analogy: Sodomy
Law as Sex Discrimination
Andrew Koppelman
The gay rights question has become a chronic irritant in constitutional
law. For more than twenty years, commentators' and courts' have debated
whether state action that imposes special burdens on homosexuals violates
the Constitution. The Supreme Court's opinion in Bowers v. Hardwick,3
which upheld the constitutionality of criminal prohibitions of sodomy, has
exacerbated the controversy rather than resolving it. The present state of
confusion should trouble not only constitutional lawyers,4 but all
Americans.
At the center of the debate is the constitutionality of the sodomy stat-
utes. While enforcement of these laws is sporadic at best, this is as poor a
measure of the injury they inflict as the relative infrequency of lynching
in the post-Civil War South. By branding all gays as criminals, the sod-
omy prohibition provides a justification for other forms of discrimination,
public and private, which injure gays in such areas as employment, pro-
fessional licensing, free speech, immigration, adoption, and child custody.'
1. See Brest, The Fundamental Rights Controversy: The Essential Contradictions of Normative
Constitutional Scholarship, 90 YALE L.J. 1063 (1981), and citations therein.
2. See Annotation, Validity of Statute Making Sodomy a Criminal Offense, 20 A.L.R.4th 1009
(1983 & Supp. 1988) (collecting cases).
3. 478 U.S. 186 (1986).
4. One of whom concluded, after surveying the arguments, that no defensible criteria [for resolv-
ing such disputes about fundamental rights] exist. Brest, supra note 1, at 1065.
5. See Brief of Amicus Lesbian Rights Project at 21-24, Bowers (No. 85-140); Brief of Amicus
Lambda Legal Defense and Educational Fund at 25-30, Bowers, and citations therein. Like hetero-
sexuals, not all homosexuals engage in sexual intercourse. But courts have frequently overlooked this
fact, invoking the sodomy statutes to justify a broad range of discriminations against gays without
requiring evidence that the particular party before them had violated any law. Id.](ViewImageLocal?handle=hein.journals/ylr98&div=14&collection=&method=preview&ext=.png&size=3)
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The Miscegenation Analogy: Sodomy Law as Sex Discrimination
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