On Listening to the Kulturkampf, or, How America Overruled Bowers v. Hardwick, Even Though Romer v. Evans Didn't

Abstract

Is Bowers v. Hardwick still good law? It’s been fourteen years since the decision upholding Georgia’s sodomy law knocked the wind out of the gay rights movement and signaled an end to the expansion of the Supreme Court’s substantive due process jurisprudence. Fourteen years, and much has changed: a largely different Court; a subsequent “gay rights case,” Romer v. Evans; but also an exponential rise in openly gay television characters, Hollywood celebrities, and politicians; a widespread extension by corporations of family benefits to gay and lesbian domestic partners; and unprecedented public debate on gay marriage, gays in the military, gays at the office, gays just about everywhere. Is the old, quaint reasoning of Bowers still the law of the land? Upon close reading, I think it is impossible to maintain that the 1996 decision of Romer v. Evans, which voided as unconstitutional a Colorado state constitutional amendment banning gay rights ordinances, overruled Bowers. Different in tone, Romer never mentioned Bowers, the cases rest on different grounds (Romer on the Equal Protection Clause, Bowers on the Due Process Clause), and the laws at