미국헌법상 동성애자의 권리 —Romer 사건과 Lawrence 사건 검토를 중심으로—

States have attempted to criminalize homosexuality by passing laws that prohibit “crimes against nature,” “buggery,” “deviancy,” and sodomy. States sometimes borrowed from English common law to define the offense as “the abominable and detestable crime against nature, either with mankind or with beast.” Frequently these laws were challenged as vague, unenforceable, and an invasion of privacy. It was often unclear whether the laws applied only to homosexuals or to married couples as well. Laws that discriminate on the basis of sexual orientation receive rational basis review - the plaintiff must show that there is no legitimate reason for the law, or that the means are not rationally related to the asserted government interest. By the way the Supreme Court has not yet ruled as to whether discrimination based on sexual orientation warrants the application of intermediate or strict scrutiny. Discrimination based on sexual orientation has many characteristics that are present in other areas where heightened scrutiny is used. There is a long history of discrimination against gays, lesbians, and bisexuals. Laws discriminating on this basis generally reflect prejudices and stereotypes, rather than any actual differences. Also, recent research suggests that sexual orientation is immutable and not a matter of individual choice. In Bowers v. Hardwick, 478 U.S. 186(1986), the Supreme Court narrowly sustained - by a 5-4 vote - the constitutionality of a Georgia statute that criminalized sodomy. A majority of Justices held that the Due Process Clause of the U.S. Constitution amendment XIV did not confer any fundamental right on homosexuals to engage in acts of consensual sodomy, even if the conduct occurred in the privacy of their own home. In Romer v. Evans, 517 U.S. 620(1996), the Supreme Court used the rational basis test to invalidate a Colorado initiative that encouraged discrimination based on sexual orientation. Colorado's Amendment 2 repealed all state and local laws that prohibited discrimination against gays, lesbians, and bisexuals. The popularly approved initiative also prevented future laws to protect these individuals. The Supreme Court found that Amendment 2 impermissibly discriminated based on sexual orientation. In Lawrence v. Texas, 539 U.S. 558(2003), the Supreme Court held that a state cannot prohibit private, consensual homosexual activity. Overruling its earlier decision in Bowers v. Hardwick, the Court held that the right to privacy protects the right of consenting adults to engage in same-sex sexual activity in their bedrooms. However, Justice Kennedy's majority opinion focused on privacy and due process, not equal protection. Moreover, Justice Kennedy's opinion did not state the level of scrutiny being used and thus it is unclear, even under the right to privacy, whether rationale basis review or heightened scrutiny is to be applied to laws that prevent private, consensual same-sex sexual activity.