Also known as: homosexual conducts · sodomy law · same-sex conduct
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
Private intimate behavior between consenting adults. The Due Process Clause protects this conduct from criminal prohibition when the state offers no justification beyond moral disapproval.
Private intimate behavior between consenting adults. The Due Process Clause protects this conduct from criminal prohibition when the state offers no justification beyond moral disapproval.
Hugo Hart and Hana Hashimoto, adult inmates in a state prison, maintained a consensual romantic relationship inside a locked cell. Officials charged them under a statute banning same-sex conduct between prisoners and defended the law solely on moral grounds. No security threat or coercion appeared in the record. The charges fail because the state may not criminalize private adult intimacy on moral disapproval alone.
Behavior that an organization may view as inconsistent with its sincerely held moral values. Forced inclusion of a person engaging in the conduct can significantly burden the group's right to define and convey its expressive message.
Hakeem Harris served as an assistant scoutmaster for a regional troop that publicly teaches moral straightness and traditional values. After Harris publicly identified as gay, the troop revoked his membership to avoid sending a conflicting message to members and parents. The state antidiscrimination agency ordered reinstatement. The troop's exclusion prevails because compelled inclusion would alter the values the organization seeks to instill.
Behavior that an organization may view as inconsistent with its sincerely held moral values. Forced inclusion of a person engaging in the conduct can significantly burden the group's right to define and convey its expressive message.
Each sense below has its own examples, sources, and questions.
Hannah Hale and Hazel Hoffman rented a unit in a condominium subject to association rules that incorporated a state statute criminalizing same-sex acts in multifamily housing. Police entered the unit and charged the couple after neighbors complained about private bedroom conduct. The statute rested only on moral condemnation. The prosecution cannot proceed because bare moral disapproval supplies no legitimate interest under the Due Process Clause.
Hana Huang and a partner engaged in consensual sexual activity inside their private bedroom in university-owned graduate housing. Campus police arrested them under a statute that singled out same-sex conduct in educational institutions. The state offered only moral disapproval as justification. The charges violate due process because the statute lacks any legitimate governmental objective.
No. The Due Process Clause requires at least a legitimate governmental interest under rational basis review. Moral disapproval standing alone does not qualify as such an interest and therefore cannot support criminal prohibition of private consensual adult intimacy.
Not when the only asserted justification remains moral disapproval. Even in institutional settings, criminalization of private consensual adult intimacy fails rational basis review absent an independent legitimate interest such as security or coercion.
An organization may exclude the member when forced inclusion would significantly burden its ability to convey a sincerely held moral message. The state's interest in nondiscrimination does not override that expressive autonomy when the burden is substantial.
The defense applies only when the organization engages in expression and the member's inclusion would materially alter the message the group seeks to convey. It does not protect purely commercial or non-expressive groups from neutral antidiscrimination rules.
…The Bowers Court was, of course, making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral, but this Court’s obligation is to define the liberty of all, not to mandate its own moral code. The Bowers Court further stated that the Due Process Clause does not recognize…