Bay Windows - July 7, 2005

Justice Sandra Day O'Connor joined with the majority in overturning Texas' anti-gay sodomy statute. But she disagreed with the majority, which found that the law violated the U.S. Constitution's guarantee of due process. In her concurring opinion, O'Connor made clear that her decision was based on the much narrower Equal Protection Clause of the Constitution: "The court today overrules Bowers v. Hardwick. I joined Bowers, and do not join the court in overruling it. Nevertheless I agree with the Court that Texas' statute banning same-sex sodomy is unconstitutional. Rather than relying on the substantive component of the Fourteenth Amendment's Due Process Clause, as the Court does, I base my conclusion on the Fourteenth Amendment's Equal Protection Clause...."

"...The Texas statute makes homosexuals unequal in the eyes of the law by making particular conduct - and only that conduct - subject to criminal sanction...."

"...This case raises a different issue than Bowers: whether, under the Equal Protection Clause, moral disapproval is a legitimate state interest to justify by itself a statute that bans homosexual sodomy, but not heterosexual sodomy. It is not. Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause. ... Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons...."

"...Texas argues, however, that the sodomy law does not discriminate against homosexual persons. Instead, the State maintains that the law discriminates only against homosexual conduct. While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas' sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class...."

"...In Romer v. Evans, we refused to sanction a law that singled out homosexuals 'for disfavored legal status.' The same is true here...."

"...Whether a sodomy law that is neutral both in effect and application ... would violate the substantive component of the Due Process Clause is an issue that need not be decided today. I am confident, however, that so long as the Equal Protection Clause requires a sodomy law to apply equally to the private consensual conduct of homosexuals and heterosexuals alike, such a law would not long stand in our democratic society."

Bragdon v. Abbott, 1998:

O'Connor was a dissenter in a landmark 5-4 decision that held that the federal Americans with Disabilities Act (ADA) prohibits discrimination against people living with HIV. She authored a brief opinion that expressed agreement with Chief Justice William Rehnquist's questioning of whether or not the plaintiff, a woman who was refused dental care because of her HIV status, actually qualified as disabled under the ADA. While the plaintiff was HIV asymptomatic, the majority held that the fact that the HIV infection placed a substantial limitation on her ability to reproduce and to have children constituted the impairment of "a major life activity," thus qualifying her for disability status.

O'Connor wrote: "I agree with The Chief Justice that respondent's claim of disability should be evaluated on an individualized basis and that she has not proven that her asymptomatic HIV status substantially limited one or more of her major life activities. In my view, the act of giving birth to a child, while a very important part of the lives of many women, is not generally the same as the representative major life activities of all persons -'caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working'- listed in regulations relevant to the Americans with Disabilities Act of 1990. Based on that conclusion, there is no need to address whether other aspects of intimate or family relationships not raised in this case could constitute major life activities; nor is there reason to consider whether HIV status would impose a substantial limitation on one's ability to reproduce if reproduction were a major life activity."

San Francisco Arts & Athletics, Inc., Et Al. v. United States Olympic Committee, 1987:

Justice O'Connor joined the majority in ruling against the organizers of the Gay Games in their bid to use the word "Olympics." But she noted for the record that she believed that the United States government and the United States Olympic Committee were acting in concert.

She wrote: "I agree with the Court's construction [that the law passed by Congress giving the USOC use of the term "Olympic"] . . . is 'within constitutional bounds.' . . . But largely for the reasons explained by Justice Brennan in Part I-B of his dissenting opinion, I believe the United States Olympic Committee and the United States are joint participants in the challenged activity and as such are subject to the equal protection provisions of the Fifth Amendment."

In his dissest, Brennan wrote: "Even more importantly, there is a close financial and legislative link between the USOC's alleged discriminatory exercise of its word-use authority and the financial success of both the USOC and the Government. It would certainly be 'irony amounting to grave injustice' if, to finance the team that is to represent the virtues of our political system, the USOC were free to employ Government-created economic leverage to prohibit political speech."

Webster v. Doe, 1988:

In this case, a "covert electronics technician" for the Central Intelligence Agency "voluntarily informed the agency that he was a homosexual." He was fired and sued. Justice O'Connor joined the majority in finding that current law gave the director of the Central Intelligence Agency authority to fire an employee for any reason, including homosexuality. She dissented from the majority, however, in its finding that the fired employee could still bring a Constitutional claim in federal court: "The functions performed by the Central Intelligence Agency and the Director of Central Intelligence lie at the core of 'the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations.' [taken from the opinion in] United States v. Curtiss-Wright Export Corp. . . . The authority of the Director of Central Intelligence to control access to sensitive national security information by discharging employees deemed to be untrustworthy flows primarily from this constitutional power of the President, and Congress may surely provide that the inferior federal courts are not used to infringe on the President's constitutional authority."

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