Exorcising the Ghosts of <em>Bowers v. Hardwick</em>: Uprooting Invalid Precedents

After the Supreme Court rejected a constitutional challenge to criminal sodomy laws in Bowers v. Hardwick (1986), lower federal courts almost invariably took the position that gay litigants could not prevail in challenging governmental discrimination on the basis of sexual orientation, reasoning that if conduct that "defined the class" was not constitutionally protected, government discrimination against the class should not be considered presumptively unconstitutional. Such logic should have been discarded after the Supreme Court's decision in Romer v. Evans (1996), and certainly after Lawrence v. Texas (2003), in which the Court expressly overruled Bowers v. Hardwick. But lower federal courts have persisted in rejecting gay equal protection claims, frequently relying on pre-Romer circuit court of appeals decisions that cited Bowers as controlling precedent. These discredited but still influential precedents are the "ghosts" of Bowers v. Hardwick.

Now that Bowers has been overruled, it is past time for the lower federal courts to "exorcise" these ghosts by thinking anew the doctrinal issues raised by gay equal protection claims, which should lead to heightened scrutiny of policies and practices that discriminate against gay people.