Tradition and Equal Protection

Kim Forde-Mazrui - University of Virginia School of Law

A central point of contention in the debate over same-sex marriage is the importance of preserving tradition. The Article on which this post is based evaluates the role of tradition as a justification for laws challenged on equal protection grounds, focusing on laws that limit marriage to opposite-sex couples.1 The Article makes two main points. First, a state’s interest in preserving tradition, including the tradition of opposite-sex marriage, is probably sufficiently legitimate to survive the most deferential standard of rational basis scrutiny under the Equal Protection Clause. Second, although preserving tradition is not illegitimate per se, courts should nonetheless view tradition as a suspicious justification. Features of tradition that counsel skepticism include its speculative utility, rhetorical appeal, and manipulability. Additionally, tradition is especially suspicious when offered to justify laws that burden a group toward whom there has been a cultural shift from widespread societal disapproval in the past to substantial public tolerance today. In such circumstances, tradition may serve opportunistically as a justification for people who are actually motivated by now-repudiated attitudes toward the burdened group. For bans on same-sex marriage, courts should invalidate such laws unless, after careful scrutiny, courts are satisfied that the laws are motivated by legitimate, non-tradition-based interests.

I.  The Debate

Several states have defended laws that limit marriage to opposite-sex couples against equal protection challenges by citing the traditional status of such laws, (that is, that they have been in effect for a long time).2 Tradition has also been relied on outside the courts as a justification for opposite-sex-only marriage (hereinafter “opposite-sex marriage”). State legislatures have justified bans on same-sex marriage on the ground that opposite-sex marriage reflects a tradition of ancient pedigree.3 Similarly, tradition-preserving arguments have featured prominently in the majority of states that have amended their constitutions to ban same-sex marriage. And at the federal level, preserving tradition was cited by Congress in passing the Defense of Marriage Act4 (DOMA), and by the more than one hundred members of Congress and President George W. Bush in proposing the Federal Marriage Amendment.5

Defenders of opposite-sex marriage have argued that traditions are important because they represent, for example, time-tested wisdom6 and cultural identity,7 or because altering them may result in unintended and irreversible consequences.8 The longevity of opposite-sex marriage at least counsels patience, they caution, for society to accustom itself to such fundamental reform.9 They argue, moreover, not only that tradition is adequate to uphold opposite-sex marriage under rational basis review, but that it is a sufficiently weighty justification to withstand heightened judicial scrutiny.

In contrast, many advocates of same-sex marriage dismiss tradition as an irrelevant basis for limiting marriage to opposite-sex couples. Pointing to now-repudiated traditions such as race and sex discrimination, some go so far as to argue that tradition should count against the validity of a law.10 The forward progress of civil rights, they contend, has been marked by breaking with outmoded traditions of a less enlightened time.11 At the very least, they argue, when a law is challenged as unconstitutionally discriminating against a minority group, the state should have to advance a more substantial interest than the traditional status of the law.12

The Article focuses on equal protection analysis. An account of tradition’s relevance in this doctrinal context is most contested. For doctrines such as substantive due process, criminal procedure, and separation of powers, there is substantial consensus in caselaw that tradition is entitled to some deference. For equal protection doctrine, in contrast, some cases accord positive weight to a law because it reflects a tradition, while other cases suggest that a law’s basis in tradition may instead counsel against its legitimacy, as when the underlying tradition constitutes a “history of discrimination.”

Lacking in the debate over tradition is adequate attention to the susceptibility of tradition to be offered as a justification in lieu of ulterior motivations. Scholarship assessing tradition tends to ask only whether a law’s status as a tradition gives it value without asking the additional question whether the fact that tradition is being offered to justify the law indicates a likelihood that the law actually stems from problematic purposes. If tradition is in practice more likely to be offered as a justification when illegitimate reasons motivated a law, then asking simply whether the law reflects a tradition may result in overestimating the virtues of the law or the motivations of those who enacted it. Indeed, as the Article argues, from an equal protection standpoint, the circumstances under which tradition tends to be offered as a justification give reason to doubt the law’s validity.

II.  Tradition is a Legitimate Justification

Whether tradition can serve as a legitimate justification for bans on same-sex marriage raises three questions. The first is whether, in general, preserving tradition is a legitimate justification. The second is whether, in particular, the purpose of preserving the tradition of opposite-sex marriage, because it is traditional, is legitimate. The third question is whether the laws that exclude same-sex couples from marriage constitute a rational means for preserving opposite-sex marriage. Under the most lenient standard of rational basis review, all three conditions can probably be satisfied.

Regarding the legitimacy of preserving tradition generally, several benefits may be served by such an interest. These include consequential benefits, such as maintaining predictability and settled expectations, reinforcing community identity, and avoiding unintended consequences. Preserving tradition may also serve deontological interests—that is, interests that are independent of the law’s instrumental utility, such as intergenerational fairness.13 Viewed in the abstract, the legitimacy of these interests seems evident. A state can, and arguably should, seek to promote a sense of common heritage, shared identity, social stability, and intergenerational fairness for its constituency. Indeed, such interests are akin to the kinds of interests the Supreme Court has approved.

According some deference to tradition is supported by plausible assumptions about the American political process.  If America is a functioning democracy that values majoritarian preferences, it is plausible to assume that a law that has been retained for many generations has served the interests of a majority of the polity, and that altering it may well have negative consequences. It is at least within reason to put the burden on reformists to point to particular circumstances that make the tradition outmoded.14

As to whether opposite-sex marriage in particular is worth preserving because of its traditional status, the case is at least plausible. Experience reveals countless successful opposite-sex marriages. Although many have been dysfunctional, the relevant governmental interest is in promoting well-functioning opposite-sex marriages. The longevity of opposite-sex marriage as an institution is probative that it offers benefits that on balance have proven useful.

The final question under rational basis scrutiny is whether preserving opposite-sex marriage is rationally served by the means of denying marriage to same-sex couples. Reserving marriage to opposite-sex couples might encourage some opposite-sex marriages that otherwise would not take place. Perhaps, for example, opposite-sex couples would decline to marry if same-sex marriage were allowed because marriage would seem less privileged or less required for couples planning to procreate.15 Or perhaps some people who would marry someone of the same sex would instead choose opposite-sex marriage if that remained the only legally recognized union.  However tenuous and speculative these claims are, they are not impossible, and a highly deferential court could err in favor of accepting them.

An important caveat exists to the foregoing case for upholding opposite-sex marriage under rational basis scrutiny. A state’s interest in preserving the tradition of opposite-sex marriage must not be constitutionally tainted. A state’s interest is tainted when its legislative motivation to pursue an ostensibly legitimate interest is premised on an illegitimate assumption or belief, such as irrational fear or impermissible stereotype. Consider, for example, that a state’s interest in preserving property values and minimizing violence is legitimate, but a law cannot exclude black people or the mentally disabled from residing in a community based on a prejudiced assumption or irrational fear that their presence would degrade or disrupt the neighborhood.16 Similarly, if a state’s justification for preserving the tradition of opposite-sex marriage were rooted in animosity, irrational fear, or otherwise illegitimate assumptions about same-sex marriage,17 then the interest would be tainted and constitutionally vulnerable.

III. Tradition Is a Suspicious Justification

The principal claim of the Article is that, notwithstanding the facial legitimacy of deference to tradition as a justification, courts should nonetheless view tradition with suspicion. A justification should be considered suspicious if the likelihood that the justification would be used to support a law motivated by illegitimate purposes outweighs the likelihood that the justification would be used to support a law motivated by legitimate purposes. Tradition constitutes such a justification, especially when certain circumstances obtain.

A state is more likely to offer tradition to justify a law when illegitimate purposes actually motivated it than if legitimate purposes, consequential or deontological, were actually pursued. Consider first consequential benefits. A law’s status as a tradition would have limited usefulness in justifying a law that demonstrably produces beneficial consequences. Such a law is more likely to seem justified than a law with no identifiable benefits, or with only speculative benefits, regardless of the longevity of the law’s existence. Indeed, a law of long standing that has ceased to have any benefit or has become harmful in light of changed conditions will not seem as justified as a new law with demonstrable utility. Accordingly, those defending a law, whether in politics or litigation, have every incentive to identify the instrumental benefits of the law and to emphasize those benefits over the length of time since the law’s enactment.

In contrast, consider the incentives of those who support a law for illegitimate or problematic purposes to rely on tradition to justify the law. They would be reluctant to reveal, much less argue, reasons that may be viewed as illegitimate. A more promising strategy would be to cite legitimate, consequential benefits of the law if such benefits could persuasively be shown. Such benefits, however, may be lacking, since illegitimate motivations need not correlate to legitimate interests. If a law motivated by illegitimate purposes arguably qualifies as a tradition, that fact may represent the most benign justification available to those defending the law. In short, because invoking tradition is less persuasive than demonstrating a law’s instrumental utility, but more benign than expressly justifying a law on illegitimate or controversial rationales, tradition is more likely to reflect the latter motivations when it is emphasized as a justification for a law.

Similarly, a state is more likely to offer legitimate, deontological moral justifications than tradition to support a law if such justifications are persuasively served by the law. Just as a law’s longevity does not indicate whether it continues to have beneficial effects, a law’s longevity does not, without more, indicate whether it continues to serve deontological moral purposes. History reveals many traditions that were unjust and eventually understood as such.18 A more persuasive defense of a law than its longevity would thus be to demonstrate how it is morally justified currently. If the law were convincingly required or at least permitted by a constitutionally acceptable theory of morality, then a state would likely emphasize such a theory over the longevity of the law.

Laws against incest exemplify the foregoing dynamic. While such laws are traditional, society does not rely on that fact to justify them. Instead, society justifies criminal proscriptions of incest because the practice is widely considered morally repugnant and because incest carries an unacceptable risk of exploitation, abuse, and genetic defect. If, however, lawmakers and litigators were to emphasize the traditional status of incest bans over moral and harm-based objections, it would suggest that they believed the latter concerns were either unconvincing or illegitimate.

Another important factor that suggests the suspiciousness of tradition as a justification is when the law sought to be justified burdens a group toward whom there has been a substantial increase in social acceptability. In such circumstances, the law may have been originally adopted for reasons considered legitimate at the time but which now are considered prejudicial or empirically unfounded, prompting those who support the law to resort to tradition as a justification in lieu of admitting motivations now considered erroneous or wrong. Moreover, when there has been a shift in cultural norms over time, the older a law is, the more likely it will have been motivated by outmoded attitudes compared to laws enacted recently. A law’s status as a tradition would thus tend to coincide with laws enacted for now-repudiated purposes, making tradition especially likely to lend support to those motivated by such purposes.

The shift in cultural attitudes also undermines the extent to which a traditional law can reasonably be presumed to reflect time-tested value. If certain societal attitudes now considered illegitimate prevailed for a significant period of time, then the continuation of a law that served those attitudes likely reflects satisfaction over time of illegitimate purposes, not the “wisdom of the ages.” One of the principal rationales for deferring to tradition—time-tested experience—is thus inapplicable to a tradition that discriminates against a group long considered inferior but which is now increasingly accepted as equal.

The rhetorical appeal and manipulability of tradition provide additional reasons to be wary of tradition when offered to justify a law. “Tradition” tends to have a laudable connotation and can thus put a benign gloss on a law without having to demonstrate that the law serves legitimate interests. Furthermore, tradition is a manipulable construct.19 Depending on the level of generality at which a tradition is described, many laws that may be motivated by illegitimate purposes can be described as reflecting some tradition.

American history illustrates how tradition has been resorted to as a justification for laws initially supported by reasons that became unacceptable or unpersuasive. Laws that discriminated by race and sex, for example, were initially justified by ideologies of white and male supremacy, rooted in beliefs about religion and biology. As those beliefs became discredited and cultural norms came to view them as inconsistent with equality, those defending the continuation of such laws were required to emphasize other reasons.20 Given that race and sex bear little or no relationship to ability, however, functional justifications for race and sex discrimination were generally unpersuasive. Therefore, defenders of segregation and of sex-discriminatory laws had to rely on tradition and its presumed benefits, such as protecting cultural expectations and minimizing social disruption.


IV. Tradition Is a Suspicious Justification for Opposite-Sex Marriage

The foregoing concerns over tradition as a justification counsel treating tradition as suspicious when offered to justify laws limiting marriage to opposite-sex couples. A law’s longevity does not indicate the purpose behind its enactment, which is the critical question for equal protection analysis. That marriage laws have traditionally recognized only opposite-sex couples does not indicate what beliefs about same-sex couples motivated them. Additionally, tradition is especially suspicious when offered to justify a law burdening a group that has suffered a history of prejudice but that has more recently gained a degree of social acceptance. Considering the history of societal prejudice toward gays and lesbians, the risk that excluding them from marriage is based on illegitimate purposes is significant. Gays and lesbians have long been the target of violence, hatred, disgust, ridicule, irrational fear, and a belief that they are morally inferior.21 Several reasons may explain such disapproval, including religious teachings, beliefs about nature, and concerns over gender roles.

Despite the persistence of societal disapproval of homosexuality, it is also evident that such disapproval has become increasingly unacceptable in public discourse. Moreover, Supreme Court cases such as Romer v Evans22 and Lawrence v Texas23 suggest that laws shown to be motivated by moral disapproval of homosexuality risk constitutional invalidation. Tradition may thus serve as a less controversial justification for laws against same-sex marriage than the actual motivations behind such laws.

Some corroboration for the emergence of tradition as a justification for anti-gay laws can be found in comparing language referring to same-sex sodomy contained in judicial opinions and appellate briefs at various points in history. In early twentieth-century prosecutions for sodomy between men, courts could barely contain their disgust for the “unspeakable” crimes involved in the cases.24 The idea that such criminal laws could infringe constitutional rights was unthinkable. By Bowers v Hardwick25 in the late twentieth century, social acceptance of homosexuality had progressed to the point at which a challenge to crimes against homosexual sodomy was plausible, though unsuccessful.26 In Bowers, the state justified the law on the ground that “the very act of homosexual sodomy . . . epitomizes moral delinquency.”27 While the state’s criticism of homosexual sodomy was strong, the language was milder than that used in cases a half-century before. By 2003, in Lawrence, the state’s disapproval of same-sex sodomy was milder still. The state insisted that Texas respected the equality rights of homosexual people, but argued that the legislature could rationally defer to existing laws against homosexual sodomy because such laws are ancient and likely reflect the wisdom of many generations.28 The Court had progressed as well to the point that tradition alone was insufficient to justify criminally punishing private sexual conduct between consenting adults.29

Tradition is a convenient, manipulable, rhetorically appealing justification that enables opponents of same-sex marriage to stand on ostensibly benign grounds for their position. If, however, limiting marriage to opposite-sex couples were based on laudable purposes of legitimate moral content or consequence, then one would expect such purposes to be emphasized more than the assertion that preserving the traditional definition of marriage is important because the definition is traditional. Accordingly, when an opposite-sex marriage law is justified in the name of tradition, courts should view that justification with suspicion, invalidating the law unless the state can demonstrate that the law is genuinely based on some other legitimate justification.

Acknowledgments:

Copyright © 2011 University of Chicago Law Review

Kim Forde-Mazrui is a Professor of Law at the University of Virginia School of Law.

This Legal Workshop article is based on Kim Forde-Mazrui, Tradition as Justification:  The Case of Opposite-Sex Marriage, 78 U Chi L Rev 281 (2011).

  1. See Kim Forde-Mazrui, Tradition as Justification: The Case of Opposite-Sex Marriage, 78 U Chi L Rev 281 (2011).
  2. See, for example, Baker v Nelson, 191 NW2d 185, 186–87 (Minn 1971), citing Skinner v Oklahoma, 316 US 535, 541 (1942); De Santo v Barnsley, 476 A2d 952, 954–56 (Pa Super Ct 1984); Anonymous v Anonymous, 325 NYS2d 499, 500 (NY S Ct 1971).
  3. See Suzanne B. Goldberg, Marriage as Monopoly: History, Tradition, Incrementalism, and the Marriage/Civil Union Distinction, 41 Conn L Rev 1397, 1404–05 (2009); Anthony C. Infanti, Taxing Civil Rights Gains, 16 Mich J Gender & L 319, 342 (2010). The term “mini-DOMA” for state-level opposite-sex marriage protection laws alludes to the federal Defense of Marriage Act (DOMA). Examples of mini-DOMAs include Ala Code Ann § 30-1-19; Ariz Rev Stat Ann § 25-103 (West); Mich Comp Laws Ann § 551.1 (West).
  4. Pub L No 104-199, 110 Stat 2419 (1996), codified at 1 USC § 7 and 28 USC § 1738C.
  5. See Leonard G. Brown III, Constitutionally Defending Marriage: The Defense of Marriage Act, Romer v. Evans and the Cultural Battle They Represent, 19 Camp L Rev 159, 171 (1996); Martha M. Ertman, Commercializing Marriage: A Proposal for Valuing Women’s Work through Premarital Security Agreements, 77 Tex L Rev 17, 32 n 55 (1998); Note, Litigating the Defense of Marriage Act: The Next Battleground for Same-Sex Marriage, 117 Harv L Rev 2684, 2696–98 (2004); Sherri L. Toussaint, Comment, Defense of Marriage Act: Isn’t It Ironic Don’t You Think? A Little Too Ironic?, 76 Neb L Rev 924, 935–39, 942–47, 977–78 (1997). See generally Alec Walen, The “Defense of Marriage Act” and Authoritarian Morality, 5 Wm & Mary Bill Rts J 619 (1997). But see Mark Tanney, Note, The Defense of Marriage Act: A “Bare Desire to Harm” an Unpopular Minority Cannot Constitute a Legitimate Government Interest, 19 T Jefferson L Rev 99, 119 (1997).
  6. See, for example, William C. Duncan, Marriage and the Utopian Temptation, 59 Rutgers L Rev 265, 275 (2007), quoting Russell Kirk, Edmund Burke: A Genius Reconsidered 83 (Arlington House 1967); Michael S. Wald, Same-Sex Couple Marriage: A Family Policy Perspective, 9 Va J Soc Pol & L 291, 330 (2001).
  7. See Troy King, Marriage between a Man and a Woman: A Fight to Save the Traditional Family One Case at a Time, 16 Stan L & Pol Rev 57, 57 (2005); Kenneth W. Starr, et al, Marriage Equality in California: Legal and Political Prospects, 40 Loyola LA L Rev 1209, 1227, 1234–35 (2007).
  8. See Amy L. Wax, The Conservative’s Dilemma: Traditional Institutions, Social Change, and Same-Sex Marriage, 42 San Diego L Rev 1059, 1066–67 (2005).
  9. See Cass R. Sunstein, The Supreme Court, 1995 Term—Foreword: Leaving Things Undecided, 110 Harv L Rev 4, 97–100 (1996). See also Cass R. Sunstein, Homosexuality and the Constitution, 70 Ind L J 1, 24–28 (1994).
  10. For scholarship critical of tradition, see Eric Alan Isaacson, Traditional Values or a New Tradition of Prejudice? The Boy Scouts of America vs. the Unitarian Universalist Association of Congregations, 17 Geo Mason Civ Rts L J 1, 52 (2006); Adam B. Wolf, Fundamentally Flawed: Tradition and Fundamental Rights, 57 U Miami L Rev 101, 102–04 (2002); Robert L. Hayman Jr, The Color of Tradition: Critical Race Theory and Postmodern Constitutional Traditionalism, 30 Harv CR–CL L Rev 57, 71–73 (1995); Anita L. Allen, Autonomy’s Magic Wand: Abortion and Constitutional Interpretation, 72 BU L Rev 683, 696 (1992); Robin West, The Ideal of Liberty: A Comment on Michael H. v. Gerald D., 139 U Pa L Rev 1373, 1374–78 (1991); David J. Luban, Legal Traditionalism, 43 Stan L Rev 1035, 1042, 1045–47 (1991); John Charles Hayes, Note, The Tradition of Prejudice versus the Principle of Equality: Homosexuals and Heightened Equal Protection Scrutiny after Bowers v. Hardwick, 31 BC L Rev 375, 426–28 (1990); Helen Garfield, Privacy, Abortion, and Judicial Review: Haunted by the Ghost of Lochner, 61 Wash L Rev 293, 332–37 (1986); John G. Wofford, The Blinding Light: The Uses of History in Constitutional Interpretation, 31 U Chi L Rev 502, 528 (1964).
  11. See generally, for example, Wolf, 57 U Miami L Rev 101 (cited in note 10).
  12. See Ben Schuman, Note, Gods and Gays: Analyzing the Same-Sex Marriage Debate from a Religious Perspective, 96 Georgetown L J 2103, 2114 (2008); C. Brett Miller, Comment, Same-Sex Marriage: An Examination of the Issues of Due Process and Equal Protection, 59 Ark L Rev 471, 479–80 (2006); Carlos A. Ball, The Positive in the Fundamental Right to Marry: Same-Sex Marriage in the Aftermath of Lawrence v. Texas, 88 Minn L Rev 1184, 1223–31 (2004); William N. Eskridge Jr, A History of Same-Sex Marriage, 79 Va L Rev 1419, 1493–1510 (1993).
  13. See Frederick Schauer, Precedent, 39 Stan L Rev 571, 595–97 (1987); Anthony T. Kronman, Precedent and Tradition, 99 Yale L J 1029, 1039–41 (1990).
  14. See Maimon Schwarzschild, Marriage, Pluralism, and Change: A Response to Professor Wax, 42 San Diego L Rev 1115, 1116 (2005).
  15. See George W. Dent Jr, Traditional Marriage: Still Worth Defending, 18 BYU J Pub L 419, 437 (2004).
  16. See Buchanan v Warley, 245 US 60, 80–81 (1917); City of Cleburne v Cleburne Living Center, 473 US 432, 448 (1985). As Palmore v Sidoti, 466 US 429 (1984), makes clear, a state actor’s pursuit of an otherwise legitimate interest can be tainted by giving effect to illegitimate beliefs even if the state actor does not itself hold those beliefs. In Palmore, the state actor was a Florida trial court that removed a child from her mother’s custody because the mother’s second marriage was to a black man. Id at 431. The Supreme Court accepted that the trial court was concerned for the welfare of the child, who might experience social prejudice toward her mother’s interracial marriage, and the Court made no suggestion that the trial judge himself harbored such prejudice. Id at 432. The Court nonetheless held the trial court’s action unconstitutional. Id at 433. Although “the best interests of the child is indisputably a substantial governmental interest for purposes of the Equal Protection Clause,” the Court explained, that interest could not be achieved by giving effect to private prejudice. Id. “Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” Id.
  17. Consider Teemu Ruskola, Minor Disregard: The Legal Construction of the Fantasy That Gay and Lesbian Youth Do Not Exist, 8 Yale J L & Feminism 269, 287 (1996).
  18. Luban, 43 Stan L Rev at 1056 (cited in note 10).
  19. See, for example, William N. Eskridge Jr, Sodomy and Guns: Tradition as Democratic Deliberation and Constitutional Interpretation, 32 Harv J L & Pub Pol 193, 199 (2009). See also Laurence H. Tribe and Michael C. Dorf, On Reading the Constitution 98–99 (Harvard 1991); Wolf, 57 U Miami L Rev at 128–33 (cited in note 10); Katharine T. Bartlett, Tradition, Change, and the Idea of Progress in Feminist Legal Thought, 1995 Wis L Rev 303, 317; Luban, 43 Stan L Rev at 1046 (cited in note 10); J.M. Balkin, Tradition, Betrayal, and the Politics of Deconstruction, 11 Cardozo L Rev 1613, 1618 (1990).
  20. The difference between Dred Scott v Sandford, 60 US (19 How) 393 (1856) and Plessy v Ferguson, 163 US 537 (1895) may reflect this dynamic. In Dred Scott, the Supreme Court had no trouble rationalizing the exclusion of blacks from citizenship by observing that blacks were “so far inferior{} that they had no rights which the white man was bound to respect.” Dred Scott, 60 US at 407. In Plessy, by contrast, the Court denied any suggestion that blacks were inferior to whites or that the “equal but separate” railcar statute implied as much. Plessy, 163 US at 540, 544, 551. Nonetheless, the Court upheld the law based on tradition, explaining that the Fourteenth Amendment requires that any state-imposed segregation be “reasonable” and that “{i}n determining the question of reasonableness, {the state} is at liberty to act with reference to the established usages, customs, and traditions of the people.”  Id at 550.
  21. See Kevin T. Berrill, Anti-gay Violence and Victimization in the United States: An Overview, in Gregory M. Herek and Kevin T. Berrill, eds, Hate Crimes: Confronting Violence against Lesbians and Gay Men 19, 19–25 (Sage 1992); Yvonne Zylan, Passions We Like and Those We Don’t: Anti-gay Hate Crime Laws and the Discursive Construction of Sex, Gender, and the Body, 16 Mich J Gender & L 1, 11 (2009).
  22. 517 US 620 (1996).
  23. 539 US 558 (2003).
  24. See State v McAllister, 136 P 354, 355 (Or 1913); State v Start, 132 P 512, 513 (Or 1913) (“{Sodomy} is an offense against nature. There can be no difference in reason whether such an unnatural coition takes place in the mouth or in the fundament The moral filthiness and iniquity against which the statute is aimed is the same in both cases.”); People v Hall, 16 NYS2d 328, 329 (NY County Ct 1939).
  25. 478 US 186 (1986).
  26. Bowers, 478 US at 187, 196.
  27. Brief of Petitioner Michael J. Bowers, Attorney General of Georgia, Bowers v Hardwick, No 85-140, *36 (US filed Dec 17, 1985) (available on Westlaw at 1985 WL 667939).
  28. Respondent’s Brief, Lawrence v Texas, No 02-102, *47–48 (US filed Feb 17, 2003) (available on Westlaw at 2003 WL 470184); id at *48 n 30, quoting Michael W. McConnell, Book Review, The Role of Democratic Politics in Transforming Moral Convictions into Law, 98 Yale L J 1501, 1504 (1989).
  29. See Lawrence, 539 US at 571.

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