Homosexuality refers to relations between men or between women who experience an exclusive or predominant sexual attraction toward persons of the same sex. It has taken a great variety of forms through the centuries and in different cultures. Its psychological genesis remains largely unexplained. Basing itself on Sacred Scripture, which presents homosexual acts as acts of grave depravity, tradition has always declared that "homosexual acts are intrinsically disordered." They are contrary to the natural law. They close the sexual act to the gift of life. They do not proceed from a genuine affective and sexual complementarity. Under no circumstances can they be approved.'
The Catholic Church remains, like so many institutions, troubled by its inability to explain the origins of homosexuality. In the face of its confusion, the Church has justified continuing condemnation of gays, lesbians, and bisexuals as living in opposition to "natural law." It was the Church itself, led by figures such as Augustine, that popularized a natural law outlook in medieval Western society and originated the view that engaging in sexual activity is immoral unless it occurs within the confines of marriage to an opposite-sex partner and for the purpose of procreation. A significant proportion of Americans today share this "natural law" stance; a majority, while eschewing a distinction between procreative and nonprocreative sex, disapprove of homosexual sex under any circumstances. Such views can be justified in part because homosexuality's "genesis remains largely unexplained" despite the fact that various disciplines, including biology, psychology, and sociology, have had more than one hundred years to wrestle with the issue. The inability to answer these questions, however, stems more from cultural assumptions and biases rooted in the United States' Judeo- Christian tradition, which obscure genuine scientific understanding. These biases have also played a role in the development of our legal tradition, although it was not until the last century that legislators in many jurisdictions shifted their focus from general sexual immorality to the regulation of homosexual conduct. This shift corresponded with the "invention" of homosexuality as a "distinct category of person."
In Lawrence v. Texas, the Supreme Court held that the Constitution protects private, consensual, homosexual conduct. The petitioners in that case made a tactical decision to argue for the unconstitutionality of Texas' sodomy laws by relying on the right to privacy embedded in the substantive due process guarantees of the Fourteenth Amendment. Given the development of the Supreme Court's jurisprudence in this area, and in particular the predilections of the more moderate members of the Court, this was probably the wisest course, and it achieved the desired result. Yet our nation's efforts to exclude gays from the protections afforded other groups in the context of civil rights, marriage, and, until recently, consensual sexual relations, also violate the Constitution's Establishment Clause. It is upon this basis that questions regarding the status of gays should ultimately be resolved if gays are to achieve full personhood under the law.
Part II of this Note describes the Court's past and present approaches to the status of gays, highlighting the profound shift that occurred in Lawrence. Part III explores the Court's somewhat convoluted establishment jurisprudence and argues for Lemon's survival through modification. Part IV asserts that Judeo-Christian morality, while an important part of our cultural traditions and a powerful force in our legal thinking, is an illegitimate foundation upon which to build a stable legal regime, especially in light of the Establishment Clause.
Since Muller v. Oregon," the Supreme Court has entertained so-called "Brandeis briefs," documents containing data and other information to help the Court achieve a reasoned result. Accordingly, Part V examines scientific research regarding homosexuality and homosexual behavior, which reveals that the line between gay and straight is much more tenuous than antigay advocates would claim, undercutting the "otherness" of gays and further delegitimizing arguments that they should be denied full personhood under the law. Finally, Part VI asserts that a context- specific modification of the Lemon test applied in the face of legislation motivated solely or primarily by moral concerns serves as a more legitimate ground for decisionmaking than substantive due process, which, while effective in protecting privacy, may need to be expanded significantly by courts to strike down antigay marriage legislation and ensure gays full civil rights. Although much of the Supreme Court's substantive due process jurisprudence discusses the illegitimacy of naked morality as a basis for law, such assertions function at the periphery of the clause's core individual liberty concerns. An establishment approach provides a more logical, stable, and legitimate answer to the issues of gay marriage and civil rights waiting over the horizon.
Jeffrey A. Kershaw,
Towards an Establishment Theory of Gay Personhood,
58 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol58/iss2/4