As recently as 1986, the Supreme Court took an overtly hostile stance toward homosexuality. In Bowers v. Hardwick, the Court ruled that state "morals legislation"—including anti-sodomy laws, which criminalize gay sex—were constitutional. In defending the power of states to pass laws that criminalized homosexual acts, Justice Warren Burger noted that "condemnation of [homosexual activity] is firmly rooted in Judeo-Christian moral and ethical standards." And he even cited (rather provocatively) the eighteenth century legal scholar, William Blackstone, in support of his twentieth-century conclusion. "Blackstone described 'the infamous crime against nature' as an offense of 'deeper malignity' than rape, a heinous act 'the very mention of which is a disgrace to human nature,' and 'a crime not fit to be named.'"41
But just ten years after using such harsh language to describe homosexuality, the Court took an entirely different approach in striking down Colorado's "Amendment 2," which forbade local governments from drafting legislation protecting gays against discrimination. In Romer v. Evans, the Court applied the Lindsley (or rational basis) test and concluded that Amendment 2 failed to meet even this simple standard. The Court held that singling out one group of people and then declaring that cities could not extend protection to them served no rational government purpose; Colorado's law was thrown out.
At the time, some felt that the Court should have gone even further in defining the rights of gays and lesbians under the Constitution. But scholars like Joe Bergeron noted that even though the decision was framed narrowly, Romer v. Evans marked the first instance in which the Court acknowledged gays' sexuality as "a legitimate component of one's identity." Moreover, for the first time the Court identified gays and lesbians as a "bona fide legal entity in need of protection."42
The new stance of the Court was reflected further in 2003 when it considered, as it had in Bowers, the legitimacy of "morals legislation." This time, applying the logic advanced in Romer rather than the beliefs of William Blackstone, the Court overturned Texas's anti-sodomy law because it could find no rational state interest in singling out a group of people for criminal punishment over their private sexual activities. Once again, the decision was narrowly framed. But once again, the Court had identified gays and lesbians as a distinct category of people entitled to legal protection.
While Romer and Lawrence signaled a shifting attitude of the Court, it is still not clear how far this line of thinking will carry; it is far from clear that the Court will follow these decisions with an affirmation of a right to marry under the equal protection clause of the Fourteenth Amendment. A preliminary step has been taken through the demarcation of gays and lesbians as a discrete legal entity—a classification of people entitled to collective protection by the courts. But the degree of vigilance applied to gay issues by the court remains low; the standard that a state law restricting gay marriage must pass is still not very rigorous.
On the other hand, if the decisions made by some state supreme courts are any indication, it might be reasonable to expect the United States Supreme Court to find a right to gay marriage in the equal protection clause sometime in the near future. In Massachusetts, Connecticut, and Iowa, the state supreme courts based their affirmation of gay marriage rights on equal protection clauses in their state constitutions. Of the three, the decision of the Iowa Supreme Court is the most suggestive. The state Supreme Court employs a tiered interpretation of this clause similar to that applied by the United States Supreme Court to the federal constitution's equal protection clause; Iowa, too, has established different degrees of scrutiny for different categories of people. But where the Iowa and United States Supreme Courts diverge is in the level of scrutiny attached to laws affecting gays and lesbians. Whereas the United States Supreme Court applies the lowest standard, the Iowa Court held that laws impacting gays warranted a heightened level of scrutiny. A pattern of discrimination against gays and lesbians running throughout American history suggested to the Iowa Court that it should set a more rigorous test for any laws that incorporated classifications based on sexual orientation. The test was not as rigorous as that for racial classifications; instead, it was analogous to that used to assess gender classifications. In fact, in explaining its ruling, the Court cited the gender discrimination case, Craig v. Boren, that set this immediate standard of review. Iowa's ban on gay marriage was unconstitutional, said the Court, because it did not "substantially further any important government objective."43
If Iowa is a guide, there seems to be little likelihood that the United States Supreme Court will find a right to gay marriage in the equal protection clause of the Fourteenth Amendment until it revises its legal assessment of the classification—that it, until the Court imposes, at least, an intermediate standard of review for laws that differentiate on the basis of sexual orientation. Given the scant Supreme Court case history surrounding this issue, it's hard to say when or if that will ever occur.