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Date of this Version



Creighton Law Review (1998) 32: 241-253.


Copyright 1998, Creighton University. Used by permission.


Justice White's landmark opinion in Hardwick has survived both the test of time and the many slings and arrows of outraged scholarship launched at it by law professors who believe the Constitution should be interpreted as codifying the Kama Sutra. The eminent respectability and rightness of Justice White's methodology and reasoning in Hardwick was completely vindicated in Glucksberg, the Supreme Court's latest--and one of its most significant--decisions on the meaning of fundamental rights protected by substantive due process.

In Glucksberg, the Supreme Court reaffirmed an objective historical methodology based upon a careful and precise description of the asserted liberty interest for determining whether a substantive due process claim implicates a fundamental right entitled to heightened protection. Under this approach, the essential holding of Hardwick--that there is no fundamental right to engage in acts of homosexual sodomy--seems unassailable. Moreover, there is no possibility that homosexual marriage could qualify as a fundamental right under this test.

Nor does the Court's opinion in Romer advance the cause of those who seek to employ the Constitution to invalidate the law's traditional definition of marriage as a heterosexual union. The constitutional flaw of the law struck down in Romer was its extreme overbreadth, not the identity of the group it adversely affected. The Court did not hold or even suggest that all laws that make distinctions on the basis of sexual orientation are tainted by irrational animus. The Romer majority applied the lowest standard of review--the rational basis test--and found that no legitimate purpose reasonably fit the infinitely broad sweep of the disability imposed by Colorado Amendment 2.

If Romer governs the constitutionality of laws defining marriage as a relationship between one man and one woman, these laws certainly will be upheld. Traditional marriage laws serve many legitimate interests, any one of which by itself is sufficient to support these laws under Romer and the rational basis test. Our society's understanding of the essential nature of marriage is deeply rooted not only in history, but also in the common sense and experience of the community. Thankfully, marriage as we have always understood it has nothing to fear from the Court's decision in Romer.

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