Homosexuality and The Constitution

Indiana Law Journal
Volume 70 Issue 1 Article 1
Winter 1994
Homosexuality and the Constitution

Cass R. Sunstein
University of Chicago Law School
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Homosexuality and the Constitution
CASS R. SUNSTEIN*
Decisions of individuals relating to homosexual conduct have been subject

to state intervention throughout the history of Western civilization.
Condemnation of those practices is firmly rooted in Judeo-Christian moral
and ethical standards .... Blackstone described "the infamous crime
against nature" as an offense of "deeper malignity" than rape ....
-Bowers v. Hardwick, 478 U.S. 186, 196 (1986) (Burger, C.J.,
concurring).
I'm going to make you my girlfriend.

-Mike Downey, Fighting the'War of Words, LA. Tnms, June 19,
1991, at C1, C9 (quoting then-heavyweight champion, Mike Tyson, to his
challenger Razor Ruddock).
INTRODUCTION
Unexpectedly, discrimination on the basis of sexual orientation has become

one of the most important equality issues of the 1990's. The development is
unexpected because Bowers v. Hardwick,' the Georgia sodomy case, had been
thought to resolve most of the issues as a matter of constitutional law. But,
a range of new questions has emerged.
What if a state adopts a constitutional prohibition on laws forbidding
discrimination on the basis of sexual orientation? To say the least, this issue
is not squarely covered by Bowers. Or suppose that homosexuals are excluded
from federal employment, whether in the military or elsewhere. Bowers was
decided under the Due Process Clause, not the Equal Protection Clause, and
did not involve discrimination at all. Perhaps most discrimination on the basis
of sexual orientation is irrational in the constitutional sense; perhaps
discrimination on the basis of sexual orientation should be subjected to special
judicial scrutiny.
My goal in this Article is to set out and evaluate a range of constitutional
arguments involving discrimination on the basis of sexual orientation. I devote
special attention to what seems to me to be the most interesting and powerful
argument, that discrimination on the basis of sexual orientation is a form of
discrimination on the basis of sex. At the same time, I suggest that the
judicial role is properly limited in this context, especially because of a need
to limit the clash between public judgments and judicial judgments in so
* Karl N. Llewellyn Professor of Jurisprudence, University of Chicago Law School and

Department of Political Science. This Article consists of a revised version of the Harris Lecture,
delivered in February, 1994 at the Indiana University School of Law-Bloomington. I am extremely
grateful to the faculty and students of the law school for their graciousness and help on that occasion.
1. 478 U.S. 186 (1986) (upholding a homosexual's criminal conviction for sodomy).
2. See Craig C. Burke, Note, FencingOut PoliticallyUnpopularGroupsfrom the NormalPolitical
Processes: The Equal ProtectionConcerns of ColoradoAmendment Two, 69 IND. LJ. 275 (1993).
INDIANA LAW JOURNAL [Vol. 70:1
sensitive an area. I therefore argue for the narrowest and most incremental of
the judicial possibilities. In all likelihood, laws against homosexual orientation
and behavior will soon come to be seen as products of unfounded prejudice
and hostility, and private prejudice and hostility will themselves recede.
Courts should play a limited if perhaps catalytic role in this process.
This Article consists of three parts. Part I discusses a wide range of
constitutional claims in the context of homosexuality. Part II sets out an
anticaste principle, designed to help explain why and when sex discrimination
is constitutionally illegitimate. I spend a fair amount of space on the
appropriate conception of sex discrimination. This subject is both of
considerable interest in its own right and of great importance to an under-
standing of the issue of sexual orientation. Part III then connects the legal
attack on gender caste with the issue of same-sex relations. Here, I explore
the possibility that bans on same-sex relations are a form of sex discrimina-
tion and therefore constitutionally unacceptable. Part IV discusses the properly
limited role of courts under the Constitution and indicates how judicial
limitations might bear on the judicial role with respect to laws that disadvan-
tage homosexuals. It also suggests that these limitations apply, though to a
lesser degree, to the President and all others charged with constitutional
interpretation.
My conclusion is that it is important both to have a firm sense of the
constitutional principle that dooms discrimination on the basis of sexual
orientation, and to insist on that principle. But in the implementation of the
principle, it is necessary for courts to be cautious and selective. Caution about
issues of implementation should not be taken to suggest ambivalence about
the principle itself. Abraham Lincoln's approach to the issue of slavery
provides a model in this regard.
I. CONSTITUTIONAL POSSIBILITIES
In applying the Constitution to issues involving homosexuality, there is a

range of options. I discuss them briefly here.
A. Privacy
It is perhaps most tempting to apply the right of privacy-a form of

"substantive due process"-to sexual autonomy in homosexual relations. As
a practical matter, however, this route has been foreclosed by Bowers. Bowers
is of course much maligned. But for at least two reasons, the outcome in that
case has at least a degree of plausibility.
First, any form of substantive due process has controversial foundations as
a matter of text and history.3 It is unclear, to some reasonable people, that
substantive due process deserves much life as a basis for invalidating
legislation, except perhaps in egregious cases. Second, any constitutional
3. See JOHN H. ELY, DEMOCRACY AND DISTRUST 15-18 (1980).

1994] HOMOSEXUALITY AND THE CONSTITUTION
"privacy" rights usually are rooted in Anglo-American traditions, which often

have refused to recognize the legitimacy of homosexuality. If the Due Process
Clause creates substantive rights largely because of tradition,4 the privacy
claim in Bowers was highly vulnerable.
Perhaps these are largely technical difficulties. Substantive due process is
well-established in some privacy cases, and perhaps the relevant tradition
should be read at a sufficient level of abstraction to include consensual
relations between homosexuals. But there are other problems as well. The
fundamental problem for homosexuals is not well-described as a simple
absence of privacy. Homosexuals can disguise their sexual orientation. The
"closet" can furnish a degree of privacy. But the possibility of disguise is
hardly a full solution to current problems. For this reason the emphasis on
privacy rights seems to misconceive the basic issue. The lack of privacy
against public and private intrusion is certainly one problem, but it is a
problem primarily because of deeper problems of discrimination. A resort to
rights of privacy is therefore a misleading or, at least, an incomplete
foundation for constitutional law in this area.
B. Equality and Irrationality
1. Equality in General
Because the Equal Protection Clause was designed as an attack on

traditions, it is a far more promising source of new constitutional doctrine
than the right to privacy. Most generally, the Due Process Clause is associated
with the protection of traditionally respected rights from novel or short-term
change.' It is largely Burkean and backward-looking. By contrast, the Equal
Protection Clause is self-consciously directed against traditional practices. It
was designed to counteract practices that were time-honored and expected to
endure. It is based on a norm of equality that operates as a critique of past
7
practices.6 Because opposition to homosexuality has deep historical roots,
the Equal Protection Clause is the more sensible source of constitutional
doctrine.
4. See Cass R. Sunstein, Sexual Orientationand the Constitution: A Note on the Relationship
Between Due Process and Equal Protection, 55 U. C. L. REv. 1161, 1170-74 (1988).
5. Id. at 1170.
6. See id at 1174-75.
7. There is some dispute, however, about the depth and length of the roots. See generallyJOHN
BoswELL, CHRISrIANITY, SOCIAL TOLERANCE AND SExUALITY (1980); JOHN BOSWELT, SAME-SEX
UNIONS IN PREMODERN EUROPE (1994); K.J. DOVER, GREEK HOMOSEXUALITY, (Harv. Univ. Press
1989) (1978).
INDIANA LAWJOURNAL [Vol. 70:1
2. Equality and Rationality
Under the Equal Protection Clause, the Supreme Court has invalidated
certain forms of discrimination on the ground that they are irrational or
unconnected with any legitimate public purpose. 8 This idea is connected with
an interesting conception of democracy: the distribution of benefits or the
imposition of burdens must reflect a conception of the public good. The Court
has also disqualified, as justifications of legislation, certain ideas on the
ground that they reflect "prejudice" or "hostility." A statute based on
"prejudice" cannot qualify as rational.9
We should think of the category of "prejudice" as a placeholder for a
complex moral argument; the term is usually a conclusion masquerading as
an analytic device. But in some important cases, lower federal courts have
said that discrimination on the basis of sexual orientation can indeed be
irrational because it is a simple product of prejudice or irrational fear. Thus,
for example, some courts have said that the exclusion from the military of
people with homosexual "orientation"-unaccompanied by homosexual
acts-is irrational and therefore unconstitutional under the Equal Protection
Clause. '
In the important ruling in Steffan v. Aspin," the Court of Appeals for the
District of Columbia Circuit held that it was irrational to exclude from
military service people of homosexual orientation, short of a demonstration
of homosexual conduct. In the court's view, homosexual orientation alone was
not a legitimate basis for discharge because it was unconnected with any
plausible government interest. The court did not address the question whether
homosexual conduct could be a basis for discharge. Two district courts
reached the same conclusion, finding exclusion from the military to be
unconnected with any legitimate public goal."
These cases represent an unusual step in the law. The legislature is usually
given the benefit of every doubt against claims of irrationality because judges
lack factfinding capacity and a democratic pedigree."3 Moreover, discrimina-
tion on the basis of sexual orientation is based on widespread moral
convictions and debated empirical claims. Some people think that homosexual
conduct is immoral, though it is not clear what status this argument should
have. Others think that sexual orientation is often chosen, not a product of
genetics or early family influence, and that the state can therefore channel
people toward heterosexuality.
In part because of its modesty, the use of rationality review is quite
promising, even if it is inventive. I cannot fully resolve the rationality issue
here but must restrict myself to three notes. First, the Supreme Court has been
8. See, e.g., Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985).
9. See id. at 450.
10. E.g., Steffan v. Aspin, 8 F.3d 57, 70 (D.C. Cir. 1993), vacated, 1994 U.S. App. LEXIS 9977
(D.C. Cir. Jan. 7, 1994); Dahl v. Secretary of the United States Navy, 830 F. Supp. 1319, 1337 (E.D.
Cal. 1993); Meinhold v. United States Dep't of Defense, 808 F. Supp. 1453, 1455 (C.D. Cal. 1993).
11. Steffan, 8 F.3d 57.
12. Dahl, 830 F. Supp. 1319; Meinhold, 808 F. Supp. 1453.
13. See Dahl, 830 F. Supp. at 1326.
highly reluctant to invalidate laws on grounds of irrationality, identifying that

notion with a kind of legislative absurdity. The Court is understandably loathe
to attribute absurdity to a legislature.
Second, the idea of irrationality really depends on a judgment that the
grounds lying behind legislation are objectionable or invidious. It is not easy
to explain why the judgments that underlie discrimination on the basis of
sexual orientation are invidious; to make that claim, we have to make a moral
argument about liberty and equality, one that opposes other moral arguments.
The claim of irrationality disguises the necessary moral argument. While the
claim of irrationality seems modest, it depends at bottom on relatively
adventurous claims. Probably it can be said that discrimination on the basis
of sexual orientation alone-unaccompanied by conduct-ought to be
invalidated on rationality grounds. When conduct is at issue, the question is
whether its punishment can be associated with legitimate social goals,
unrelated to simple hostility or prejudice.
Third, the irrationality argument cannot be assessed in the abstract. It
requires a close encounter with the particular government action at issue in
various settings. Different forms of discrimination might be treated different-
ly. Consider, for example, a ban on grade-school teaching by homosexuals.
The ban should probably be struck down as irrational. If it is defended as a
means of preventing child abuse, the state should have to show, with at least
minimal plausibility, that a wholesale ban on employment is a reasonable
means of protecting against the abuse of children. Child abuse can be treated
as a separate crime, and there appears to be no evidence that homosexuals
abuse children more than heterosexuals. For this reason, such a ban would be
a good occasion for mildly aggressive rationality review and should probably
be invalidated.
Compare various bans on military service by homosexuals or by "known"
homosexuals. This is a harder case for a claim of irrationality, at least if
courts stay with their usual posture of extreme deference. Perhaps homosexual
relations would have adverse effects on military morale; perhaps the existence
of known homosexual soldiers would undermine recruitment; perhaps the
interest in privacy is sufficient to protect young soldiers from serving in such
close quarters with people of the same sex who might have a sexual interest
in them. To be sure, it is not easy to separate these interests from prejudice
or hostility, and, in the military context, many of the grounds for discrimina-
tion are disturbingly close to those that have justified race segregation and the
exclusion of women. But courts should undoubtedly be cautious in the
military context in light of the high stakes, the possibility (even if slight) of
disaster, and the complexity of the underlying facts, which are not well-suited
to judicial resolution. One might therefore believe that the ban on homosexual
service in the military should be presumed unconstitutional by Congress and
the President, without also believing that federal courts should strike down the
ban except perhaps in the most egregious cases. 4
14. Steffan was probably an egregious case since it involved orientation alone.
Consider finally the interests that justify constitutional bans on laws

discriminating on the basis of sexual orientation, or more dramatically, bans
on same-sex marriages. The ban on same-sex marriages is not easy to support,
especially in light of the possibility that the ban contributes to the AIDS
crisis. 5 Perhaps the ban could be justified as a means of restricting the
benefits of marriage to relations that involve children. As stated, this
justification is quite crude to say the least. Homosexuals can adopt children
if the law permits, and, if the law permits, homosexuals may even have
children with a biological connection to one parent. In any case, many
heterosexual marriages do not involve children, because the couple cannot or
does not want to have children. Moreover, the state does not prevent marriage
by infertile couples, by fertile couples who choose not to have children, or by
people too old to have children. The claim that marriage should be restricted
to situations involving the potential to have biological offspring therefore
seems weak. Nevertheless, it could survive rationality review. It is at least
rational-in the technical sense-to say that marriage is reserved for cases in
which children can potentially result from the married couple.
Alternatively, the state might say that it does not want to "advertise" that
same-sex relations can be happy, healthy, and successful, and the grant of a
marriage license would be an endorsement of a practice deserving at best
neutrality and not approval. This argument is fragile as well. Whether same-
sex relations are less happy and healthy than heterosexual relations-
independent of public and private discrimination-is most unclear. Much the
same might be said about interracial relations, and the possibility of less
happiness in that context is not a reason for discrimination. On the other hand,
if rationality review applies, almost any argument is good enough, so perhaps
this would be sufficient to validate the ban on same-sex relations.
A final argument would rely on the widespread moral disapproval of same- 16
sex relations. This argument was found sufficient in Bowers v. Hardwick,
and perhaps it is sufficient here too. On the other hand, widespread moral
disapproval is not always a legitimate basis for law; consider the bans on
miscegenation or discrimination against the mentally retarded. The task for
courts invoking irrationality in the context of same-sex marriages is to
distinguish the contexts in which moral disapproval is legitimate from those
in which it is not. But so long as ordinary rationality review applies, the state
can almost certainly meet its burden at the present time. At least at the
national level, the Supreme Court should be reluctant to invalidate the ban on
same-sex relations on grounds of irrationality.
On the other hand, it is not at all clear that the state can invoke these
arguments to justify constitutional barriers to forbidding discrimination on the
basis of sexual orientation. This issue is addressed below.
15. See THOMAS J. PHILIPPSON & RICHARD A. POSNER, PRIVATE CHOICES, PUBLIC HEALTH 150
(1993).
16. Bowers, 478 U.S. 186, 196 (1986).
19941 HOMOSEXUALITY AND THE CONSTITUTION
C. Equality and Suspect Classes
Perhaps it should be argued that discrimination on the basis of sexual

orientation is analogous to discrimination on the basis of race or sex and
therefore should be invalidated except in the rarest of circumstances. This is
a highly plausible argument, though a great deal would have to be said in
order to make it fully. The argument has also attracted some favorable
attention from lower courts. In Jantz v. Muci," a district court held that
discrimination on the basis of sexual orientation "is inherently suspect," and
a panel of the Court of Appeals for the Ninth Circuit agreed, though its
opinion was vacated.' 8
The Supreme Court has granted "heightened scrutiny" to laws that
discriminate against certain identifiable groups likely to be at particular risk
in the ordinary political process. 9 When the Court grants heightened
scrutiny, it is highly skeptical of legislation, and the burden of every doubt
therefore operates on behalf of groups challenging the relevant laws.
In deciding whether to grant heightened scrutiny, the Supreme Court has not
been altogether clear about its underlying rationale. The Court appears to have
looked most carefully at the likelihood that the group in question will be
subject to prejudice, the existence of past and present discrimination, and the
group's lack of political power.20 In this way, it has moved well beyond the
defining case of discrimination against blacks to include discrimination
against women, illegitimate children, and, at times, aliens.2' The Court has
not yet decided how discrimination against homosexuals should be treated.
A brief overview of the traditional factors and of how they might apply in
this context follows. It seems reasonable to think that discrimination on the
basis of sexual orientation is especially likely to reflect prejudice (subject to
the qualification above, noting that prejudice is a complex category, a
placeholder for a moral argument). When government disadvantages
homosexuals, it seems plausible to think that it will often do so because of an
unreasoned or visceral belief in their sickness or inferiority, or because of
sheer ignorance of relevant facts. In this way, discrimination on the basis of
sexual orientation seems closely akin to discrimination on the basis of race
and sex. In all of these settings, prejudice-understood as stereotypical
thinking based on factual falsehoods and often rooted in simple hostility-is
likely to account for discrimination.
17. 759 F. Supp. 1543, 1551 (D. Kan. 1991), rev d on other grounds, 976 F.2d 623 (10th Cir.
1992).
18. Watkins v. United States Army, 847 F.2d 1329, 1349 (9th Cir. 1988), withdrawn, 875 F.2d 699
(9th Cir. 1989), cert. denied, 498 U.S. 957 (1990).
19. See, e.g., City of Richmond v. J.A. Croson, Co., 488 U.S. 469 (1989); Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 440 (1985); Craig v. Boren, 429 U.S. 190 (1976).
20. See Cleburne, 473 U.S. at 442-45.
21. See, e.g., Cleburne, 473 U.S. at 440 (mentally retarded persons), Jimenez v. Weinberger, 417
U.S. 628 (1974) (illegitimate children); Frontiero v. Richardson, 411 U.S. 677 (1973) (women); Graham
v. Richardson, 403 U.S. 365 (1971) (aliens).
It seems clear too, that homosexuals have been and continue to be subject
to public and private discrimination. For most of American history, disclosure
of a homosexual orientation was grounds for inflicting serious social harms.
Even today, homosexuals must often keep their orientation secret in order to
be free from discrimination and even violence. In many sectors of the
economy, homosexuals cannot easily obtain jobs if their sexual orientation is
disclosed.22
Homosexuals may well be politically powerless in the constitutionally
relevant sense. They often have difficulty in making alliances with other
groups by virtue of the existence of widespread prejudice and hostility
directed against them. Precisely because they are often anonymous (that is,
not known to be homosexual) and diffuse (that is, not tightly organized), they
face large barriers to exerting adequate political influence.23 For this reason,
it is probably not decisive that homosexuality-unlike race and gender-can
be concealed. The ability to conceal can actually make things worse from the
standpoint of exercising political power. This problem, severe in itself, is
heightened by the fact that people who challenge discrimination on the basis
of sexual orientation are often "accused" of being homosexual themselves,
which may have harmful consequences for their reputations.24 The existence
of widespread hostility against homosexuals can thus make it difficult for
homosexuals and heterosexuals alike to speak out against this form of
discrimination.
All of these arguments seem to fit both the facts and the law, but there are
some real complexities here. One problem with the issue of "political
powerlessness" is that relevant judgments are based not simply on facts about
political influence, but also depend on some controversial and usually
unarticulated claims about how much political power is appropriate for the
group in question, and about the legitimacy of the usual bases for legislative
judgments on matters affecting the group. The claim that a group is politically
weak in the constitutional test is thus a product of some controversial, value-
laden claims, which are not always brought to the surface.
For example, it might be thought that homosexuals have a good deal of
political power, for they can influence elections, even elections of the
President. But the same is true of blacks and women, both of whom can
influence elections a great deal. The potentially large electoral influence of
both of these groups does not exclude them from the category of groups
entitled to particular protection against discrimination. The reason is that even
if political influence can be wielded, prejudice in the constitutionally relevant
sense is likely to operate in the political process against both blacks and
22. See LESBIANS, GAY MEN, AND THE LAW, 243-48 (William B. Rubenstein ed., 1993).
23. See Bruce A. Ackerman, Beyond CaroleneProducts, 98 HARV. L. REV. 713, 729-30 (1985).
24. I know of no study of this phenomenon, but substantial evidence suggests that it is widespread.
Consider the fact that there has been serious debate over whether "marching in a gay parade" should
be taken as evidence of homosexuality. See 139 CoNG. REC. S6691, S6692 (daily ed. May 27, 1993)
(remarks of Sen. Nunn) (regarding Representative Frank's proposal concerning gay men and women in
the armed forces); id. at S11211 (daily ed. Sept. 9, 1993) (committee report).
women. The category of political powerlessness looks like an inquiry into

political science, but it really depends on some normative judgments about the
legitimacy of the usual grounds for government action. To say that homosexu-
als are politically powerless, it is necessary to say that the usual grounds for
discrimination are impermissible. This is not a claim about political power
alone. The usual grounds may indeed be impermissible; my point here is only
that this claim cannot be separated from the claim of insufficient political
power.
The Supreme Court has sometimes said that it disfavors discrimination
based on "immutable" characteristics, but this is a confusing claim.25 In fact
the emphasis on immutability has much obscured analysis. Homosexuality
may or may not be immutable in the relevant sense; this is a sharply disputed
issue as a simple matter of fact. Mutability, however, is not the decisive
factor. For one thing, immutable characteristics are not an illegitimate basis
for adverse governmental action. For example, blind people can be told not
to drive. Even if there were a biological predisposition toward certain criminal
behavior, we could surely punish that behavior so as to deter and stigmatize
it. A biological predisposition to engage in certain conduct is thus not a basis
for immunity from the criminal law if the underlying conduct can legitimately
be punished. If homosexual conduct can legitimately be punished, it ought not
to matter if it can be shown that homosexual orientation is produced by
biology or early childhood experiences. So too, it should not matter, for Equal
Protection purposes, if skin color or gender could be changed through new
technology. After all, discrimination on the basis of race would not become
acceptable if scientists developed a serum through which blacks could become
white.
Immutability is neither a necessary nor a sufficient basis for treatment as
a "suspect class." The real question is whether legislation disadvantaging the
relevant group is peculiarly likely to rest on illegitimate grounds; heightened
scrutiny is a way of testing whether it does. I do not think that on this count,
discrimination against homosexuals is less troublesome than discrimination
against blacks and women. But here too, any judgments turn on complex
arguments.
From what I have said thus far, it seems reasonable to believe that
discrimination against homosexuals should be subject to strict scrutiny.
Despite its plausibility, however, the argument that homosexuals are entitled
to special protection from discrimination is unlikely to be accepted by the
Court that decided Bowers, and in any case perhaps we can build more
narrowly on existing law.
25. See, e.g., Frontiero, 411 U.S. 677, 686-87.

D. PoliticalRights and Equality Rights
Some states have enacted or are considering constitutional amendments that

would forbid laws prohibiting discrimination on the basis of sexual orienta-
tion. Colorado's Amendment Two, for example, says that no state law may
ban discrimination against homosexuals. 26 Are these measures constitutional?
The constitutional challenge to such measures is quite different from the
arguments described thus far. The challenge involves a claim about interfer-
ence with protected rights, not merely about group status. In several cases, the
Supreme Court has invalidated laws that seem to impose special political
barriers to well-defined groups. Thus, in Hunter v. Erickson,27 the Court
invalidated an amendment to the Akron city charter barring the City Council
from implementing any ordinance dealing with discrimination in housing
without voter approval. This "explicitly racial classification treating racial
housing matters differently from other racial and housing matters" involved
the political process and could not survive strict scrutiny.28 Similarly, in
Washington v. Seattle School District No. I,29 the Court struck down a law
forbidding any school board from requiring a student to attend a school other
than the school geographically nearest the student's place of residence.
According to the Court, governments may not restructure political processes
"by explicitly using the racialnature of a decision to determine the decision-
making process."3 °
The Colorado Supreme Court built upon Hunter and Washington, suggesting
that when a law imposes special barriers to political participation by "an
identifiable group," there has been a violation of the Equal Protection
Clause. 3' But both of the United States Supreme Court precedents are
distinguishable; they were written and understood as race cases. A statute that
explicitly or implicitly allocates political benefits and burdens along racial
lines should of course be presumed unconstitutional.32 By contrast, in the
context of an amendment forbidding laws banning discrimination on grounds
of sexual orientation, there is no racial issue. It could therefore be concluded
that states may allocate their own internal authority as they like-imposing
supermajority requirements in some cases or allowing state-level decisions or
local autonomy in others-so long as race and sex discrimination are not
involved. In general, this proposition seems unexceptionable.
Hunter and Washington would therefore have to be extended to invalidate
any law that imposes distinctive political barriers not just to blacks but to
other groups defined in certain terms. This step would be an innovation, but
26. Amendment 2 to COLO. CONST. art. II, § 2 (adopted Nov. 3, 1992).

27. 393 U.S. 385 (1969).
28. Id. at 389.
29. 458 U.S. 457 (1982).
30. Id. at 470 (emphasis in original).
31. Evans v. Romer, 854 P.2d 1270, 1273 (Colo.), cert. denied, 114 S. Ct. 419 (1993).
32. See Cass R. Sunstein, Public Values, PrivateInterests, and the EqualProtection Clause, 1982
Sup. CT. REv. 127, 141.
1994) HOMOSEXUALITY AND THE CONSTITUTION
it is not clear that it would be too broad. In fact, the Colorado Supreme Court
relied on a United States Supreme Court case suggesting that special barriers
are permissible when an "identifiable group" is not involved.33 Perhaps we
can read "identifiable group" to include not simply blacks but any group
defined in terms of some characteristic that is not ordinarily a legitimate basis
for the allocation of political authority. Perhaps the Court could say that,
without reaching the question of whether discrimination against homosexuals
is suspect and without saying that such discrimination is generally irrational,
it will require powerful justifications for any law that imposes special
democratic barriers to legislation protecting homosexuals from discrimina-
tion.34
This is not a simple test; it remains to say exactly what sorts of democratic
barriers are constitutionally suspect. But the test would have the beneficial
characteristic of narrowness. Without deciding that discrimination on the basis
of sexual orientation is generally suspect, or generally irrational, courts might
well conclude that no state may impose special barriers to democratic
deliberation about this subject. I suggest that though the precedents do not
require this result, the Equal Protection Clause should forbid special
constitutional barriers to laws that prohibit discrimination on the basis of
sexual orientation.
E. Equality, Sex Discrimination,and Homosexuality
To approach the possibility of a link between discrimination on the basis of

sex and discrimination on the basis of sexual orientation, consider Chief
Justice Burger's striking concurrence in Bowers. There, the Chief Justice
offered an approving reference to Blackstone's suggestion that sodomy is "an
offense of 'deeper malignity than rape,' a heinous act, 'the very mention 'of35
which is a disgrace to human nature,' and 'a crime not fit to be named."'
It might be worthwhile to linger for a moment over the suggestion that
consensual sexual relations among men are of "deeper malignity than rape."
How could this possibly be so? Why did both Blackstone and the Chief
Justice think it worthwhile to compare the two crimes, and to assert the
comparatively greater malignity of consensual sodomy?
I think that the answer closely links the problem of discrimination on the
basis of sex with that of discrimination on the basis of sexual orientation.
Rape has often seemed far less violative of human nature than sodomy, and
this says a good deal about the character of sex discrimination and sex
differences. Chief Justice Burger's comment inadvertently helps explain why
Loving v. Virginia36 is a good precedent for the subject under discussion. But
33. Evans, 854 P.2d at 1282 (citing Gordon v. Lance, 403 U.S. 1, 7 (1981)).
34. Cf Plyler v. Doe, 457 U.S. 202 (1982) (finding that Texas' reasons for controlling resources
were not substantial enough to sustain a law that would harm illegal aliens).
35. Bowers v. Hardwick, 478 U.S. 186, 197 (1986) (Burger, CJ., concurring) (quoting 4 WILLIAM
BLAcKsToNE, CoMMENTAmiEs *215).
36. 388 U.S. 1 (1967).
INDIANA LAWJOURNAL [Vol. 70:1
to say this is to get a bit ahead of the story. Let me turn more generally, then,
to the equality principle of the Fourteenth Amendment.
II. THE ANTICASTE PRINCIPLE
A. In General
At the origin, the central target of the Fourteenth Amendment was not
irrational distinctions on the basis of race, but the system of racial caste."7
For those who ratified the Civil War Amendments, the problem was that the
law had contributed to a system of caste based on race, thought to be a
morally irrelevant characteristic. Those who framed and ratified these
amendments were aware that the system of racial hierarchy had often been
attributed to nature. Thus, in the aftermath of the American Civil War, it was
expressly urged, "God himself has set His seal of distinctive difference
between the two races, and no human legislation can overrule the Divine
decree."3" In the same period, anti-discrimination law was thus challenged
squarely on the ground that it put the two races in "unnaturalrelation ... to
each other." 9 The Civil War Amendments were based on a wholesale
rejection of the supposed naturalness of racial hierarchy. The hierarchy was
thought to be a function not of natural difference but of law, most notably the
law of slavery and the various measures that grew up in the aftermath of
abolition. The animating purpose of the Civil War Amendments was an attack
on racial caste.
We might similarly understand the problem of sex discrimination, to the
extent that it is troublesome, as amounting to the creation of something like
a system of caste, based on gender and often operating through law. That
system, like the racial caste system and others as well, is often attributed to
"nature" and "natural differences." Consider here John Stuart Mill's remarks:
But was there any domination which did not appear natural to those who
possessed it? ... So true is it that unnatural generally means only
uncustomary, and that everything which is usual appears natural. The
subjection of women to men being a universal custom, any departure from
it quite naturally appears unnatural.4"
37. See Akhil R, Amar, The Case of the Missing Amendments: LA.V. v. City of St. Paul, 106
HARV. L. REv. 124 (1992).
38. 2 CONG. REC. app. 3 (1874) (statement of Rep. Southard).
39. 3 CONG. REc. 983 (1875) (statement of Rep. Eldredge) (emphasis in original).
40. JOHN STUART MILL, THE SUBJECTION OF WOMEN, 13-14 (MIT Press 1970) (1869).
Compare this description of attitudes in prerevolutionary America:
So distinctive and so separated was the aristocracy from ordinary folk that many still thought
the two groups represented two orders of being.... Ordinary people were thought to be
different physically, and because of varying diets and living conditions, no doubt in many cases
they were different. People often assumed that a handsome child, though apparently a
commoner, had to be some gentleman's bastard offspring.
GORDON S. WOOD, THE RADICALISM OF THE AMERICAN REVOLUTION 27 (1991).
A principal feature of the caste system based on gender consists of law and
social practices that translate women's sexual and reproductive capacities into
a source of second-class citizenship.
In these circumstances, I suggest that building on the racial analogue, the
appropriate equality principle in the area of sex equality is an opposition to
caste. The legal objection should be understood as an effort to eliminate, in
places large and small, the caste system rooted in gender. A law is therefore
objectionable on grounds of sex equality if it contributes to a caste system in
this way. The controlling principle to be vindicated through law is not that
women must be treated "the same" as men, but that women must not be
second-class citizens. As discussed below, there are important differences
between the two points.
The concept of caste is by no means self-defining. I will have to offer a
brief and inadequate account here, one that is designed to provide a preface
to the discussion of discrimination on the basis of sexual orientation." Of
course, I do not suggest that the caste-like features of all societies containing
sex inequality are the same. Certainly the American system of sex discrimina-
tion is far less oppressive than most systems of racial and gender caste. But
I do claim that the caste-like features are what justify social and legal
concern.
The motivating idea behind an anticaste principle, broadly speaking
Rawlsian in character, is that without very good reasons, social and legal
structures ought not to turn differences that are irrelevant from the moral
point of view into social disadvantages. They certainly should not be
permitted to do so if the disadvantage is systemic. A difference is morally
irrelevant if it has no relationship to individual entitlement or desert. Race and
sex are certainly morally irrelevant characteristics in the sense that, in general,
skin color and gender are not appropriate grounds for the distribution of social
benefits and burdens. A systemic disadvantage is one that operates along
standard and predictable lines in many important spheres of life and applies
in realms that relate to basic participation as a citizen in a democracy. The
anticaste principle means that, with respect to basic human capabilities and
functionings, one group ought not to be systematically below another.42
Self-respect and its social bases ought not to be distributed along the lines
of race and gender. 43 An important aspect of a system of caste is that social
practices produce a range of obstacles to the development of self-respect,
41. See generally CASS P- SUNSTEIN, THE PARTIAL CONSTITUTION ch. 11 (1993) [hereinafter
SUNsTEN, PARTIAL CONSTITUTION]; Cass R. Sunstein, The Anticaste Principle,92 MICH. L. REv. 2410
(1994).
42. On capabilities and functioning, see generally AMARTYA SEN, COMMODITIES AND CAPABILITIES
(1985); AMARTYA SEN, INEQUALITY REEXAMINED (1992); Martha Nussbaum, Aristotelian Social
Democracy,in LIBERALISM AND THE GOOD 203 (R. Bruce Douglass et al. eds., 1990). I am adding to
these discussions (1) a suggestion that in the context of gender, the problem lies in the particular fact
that one group is systematically below another along the relevant dimensions, and (2) an explanation
of how this situation is produced by social practices and law.
43. See JOHN RAWLS, POLITICAL LIBERALISM 82, 180 (1993).
largely because of the presence of the morally irrelevant characteristic that

gives rise to caste status.
In the area of sex discrimination, the problem is usually this sort of
systemic disadvantage. A social or biological difference has the effect of
helping to subordinate members of the relevant group, not because of
"nature," but because of social and legal practices. Prominent among these
practices is the social and legal control of women's sexual and reproductive
capacities. The resulting inequality occurs in multiple spheres and along
multiple indices of social welfare: poverty, education, health, political power,
employment, susceptibility to violence and crime, and many others." This
is the caste system to which the legal system should be responding.
Of course, courts face important limits in implementing the anticaste
principle. Indeed, it may be because of these limits that judges have attempted
not to attack caste itself, but mostly to eliminate race and sex distinctions-an
attempt that overlaps with, but is not identical to, an effort to counteract
caste-like features of current practice. In describing the anticaste principle, I
am emphatically not describing what courts should do. Courts should be
modest in assuming tasks for which they are poorly suited. There is a space
between a constitutional principle and judicial activity; this space will be
addressed below.
B. Are Women Different? Does It Matter If They Are?
We are now in a position to make some general observations about the

important and vexing matter of sex "differences"; these will bear directly on
the issues raised by homosexuality. It is often said that women and men are
different and that the differences help both to explain and to justify existing
social and legal inequality. 4 It is often claimed, for example, that women are
different from men and that different treatment in law is therefore perfectly
appropriate. Indeed, in many legal systems, including that in America, the
basic social and legal question is: Are women different from men? If not,
have they been treated similarly?"
However widespread, this approach will not do. The question for decision
is not whether there is a difference-often there certainly is-but whether the
legal and social treatment of that difference can be adequately justified.
Differences need not imply inequality and only some differences have that
effect. When differences do produce inequality, it is a result of legal and
social practices, not the result of differences alone. Since they are legal and
44. See generally JONI SEAGER & ANN OLSON, WOMEN IN THE WORLD: AN INTERNATIONAL ATLAS
(1986); DEBBIE TAYLOR ET AL., WOMEN: A WORLD REPORT (1985).
45. For a recent example, see RICHARD A. EPSTEIN, FORBIDDEN GROuNDS 269-82 (1992).
46. On how these questions are at work in American law, see generally CATHARINE A.
MACKINNON, FEMINISM UNMODIFIED (1987) [hereinafter MAcKiNNON, FEMINISM UNMODIFIED];
CATHARINE A. MAcKINNON, TOWARD A FEMINIST THEORY OF THE STATE (1989) [hereinafter
MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE].
social, these practices might be altered even if the differences remain. In any
case, inequality is not justified by the brute fact of difference.
An analogy may be helpful here. The problems faced by disabled people are
not a function of disability "alone" (an almost impenetrable idea-what would
current disabilities even mean in an entirely different world?) but instead
result from the interaction between physical and mental capacities on the one
hand and a set of human obstacles made by and for the able-bodied on the
other. It is those obstacles, rather than the capacities taken as brute facts, that
create a large part of what it means, socially speaking, to be disabled.
"Nature" is quite irrelevant. It would be implausible, for example, to defend
the construction of a building with stairs, and without means of access for
those in wheelchairs, on the ground that those who need wheelchairs are
"different." The question is whether it is acceptable, or just, to construct a
building that excludes people who need another means of entry. That question
may not be a simple one, but it cannot be answered simply by pointing to a
difference. The same is true for sex.
We can go further. Differences between men and women-especially those
involving sexuality and reproduction-are often said to explain sex inequality,
indeed to be the origin of inequality. But it might be better to think that at
least some such differences are an outcome of inequality or its product.47
Certainly some and perhaps many of the relevant "real differences" between
men and women exist only because of sex inequality. Differences in physical
strength, for example, would certainly exist without inequality, but such
differences as there now are undoubtedly have a good deal to do with
differences in expectations, nutrition, and training. These differences cannot
solely be attributed to women's sexual and reproductive capacities. Indeed, the
degree of difference between men and women is notoriously variable across
time and space. These variations are sufficient to show that what society
attributes to nature is often a social product.
Even differences in desires, preferences, aspirations, and values are in
significant part a function of society and even law-in particular of what
these institutions do with sexuality and reproduction. Preferences are often
adaptive to the status quo, and a status quo containing caste-like features
based on sex will predictably affect the preferences of men and women in
different ways. It will lead to distinctive processes of preference formation,
inclining men and women in different directions in both the public and private
spheres.
This point suggests that it is wrong to base sex discrimination policy only
on what women currently "want."48 Existing preferences may well be at least
47. See MAcKINqON, FEMINISM UNMODIFIED, supra note 46, at 32-45. 1 phrase the point tentatively
because ultimately this is a historical question on which there is now insufficient evidence for firm
judgments.
48. In the context of sex discrimination, see MILL, supranote 40, and MARY WOLSTONECRAFT, A
VINDICAnON OF THE RIGHTS OF WOMAN, (Carol H. Poston ed., 1975). See generally Martha Craven
Nussbaum, Shame, Separateness,and PoliticalUnity, in ESSAYS ON ARISTOTLE'S ETHICS 395 (Am61ia
Oksenberg Rorty ed., 1980); Amartya Sen, Rational Fools, 6 PHIL. & PUB. AFF. 317 (1977); Cass R.
Sunstein, Preferences and Politics, 20 PHIL. & PUB. AFF. 3 (1991).
partly an artifact of a discriminatory status quo. Of course, current views of

both men and women bear on what society and government should do. But
many of the sex differences that are said to justify inequality-physical,
psychological, and others-are really a product of inequality. This is, of
course, an empirical claim. In light of current knowledge, we cannot say
precisely how much of sex difference is a product of law and society. But we
know enough to suggest that nature is not responsible for all of the inequality
that we see.
III. ON SEX DIFFERENCE AND SEXUAL ORIENTATION
I now examine the relationship between sex discrimination and discrimina-

tion on the basis of sexual orientation. As I have noted, the ban on same-sex
marriages is not now thought to raise a problem of sex inequality under the
American Constitution. But might the legal ban (and the social taboo) not be
a product of a desire to maintain a system of gender hierarchy, a system that
same-sex marriages tends to undermine by complicating traditional and still-
influential ideas about the "natural difference" between men and women?
It is possible to argue that in terms of their purposes and effects, bans on
same-sex marriage have very much the same connection to gender caste as
bans on racial intermarriage have to racial caste.49 I am speaking here of the
real-world motivations for these bans, and I am assuming, as does current law,
that impermissible motivations are fatal to legislation. The claim of neutrality
may be implausible in this context for exactly the same reason that it was
implausible in Loving.5" To say this is not to say that the ban on same-sex
marriages is necessarily unacceptable in all theoretically possible worlds. But
here, the ban is like a literacy test motivated by a discriminatory purpose or
a veteran's preference law designed to exclude women from employment.
A. A True Story"
In 1958, Richard Loving, a white man, and Mildred Jeter, a black woman,
were married in the District of Columbia.52 Soon thereafter, they returned to
their home in Virginia and were promptly indicted. Their crime was to have
married in violation of Virginia's prohibition on interracial marriage. They
pleaded guilty to the charge and were sentenced to a year in jail. The trial
judge suspended the sentence on the condition that the Lovings leave Virginia
and not return for twenty-five years. The judge said: "Almighty God creates
the races white, black, yellow, malay and red, and he placed them on separate
49. See generally Andrew Koppelman, The Miscegenation Analogy, 98 YALE L.J. 145 (1988);
Sylvia A. Law, Homosexuality and the Social Meaning of Gender, 1988 WIs. L REV. 187; Adrienne
Rich, Compulsory Heterosexualityand Lesbian Existence, in BLOOD, BREAD, AND POETRY 23 (1986).
50. See discussion infra part HLA.
51. See Koppelman, supra note 49.
52. The idea that there is an analogy between the Loving case and cases involving the ban on same-
sex relations has been well-discussed elsewhere. Versions of the argument are made in Koppelman,
supra note 49 and Law, supra note 49. I am much indebted to those treatments here.
continents. And but for the interference with his arrangement there would be
no cause for such marriages. The fact that 53
he separated the races shows that
he did not intend for the races to mix.
The Lovings challenged the anti-miscegenation law on constitutional
grounds, claiming that the law deprived them of the "equal protection of the
laws. 54 Thus was born the most aptly titled case in the entire history of
American law, Loving v. Virginia.
The legal issues before the United States Supreme Court in Loving were
relatively straightforward. In 1954, the Court had decided Brown v. Board of
Education." There, the Court emphasized that racial discrimination is
56
constitutionally unacceptable and that "separate but equal" is not equal.
The Brown Court held that under the Constitution, the government could not
discriminate against blacks. This was the issue in Loving: Was the ban on
racial intermarriage a form of discrimination in the relevant sense?57 On this
question, there was sharp dispute. Virginia thought that the answer was
"Clearly not."
Virginia's lawyers argued that anti-miscegenation laws punished whites and
blacks equally. They claimed that there was no discrimination against blacks.
The only relevant discrimination was against people who sought to participate
in mixed marriages, and such people were racially diverse. Unlike in Brown,
where racial separation marked racial inequality, here separation was truly
equal. Discrimination against people who seek to participate in mixed
marriages is not "racial discrimination" at all. It does not draw a line between
blacks and whites. It is a form of discrimination to be sure-but not the form
that justifies special judicial skepticism under the Constitution. Because blacks
and whites were treated exactly alike, that kind of skepticism was unwar-
ranted.
From the standpoint of the 1990's, the argument may seem odd, even
otherworldly. But if we linger over it, we will see that its logic is straight-
forward and even plausible. It is true that in an important way, laws
forbidding interracial marriages treat blacks and whites alike. How did the
Supreme Court respond? The key sentence in Loving says that "the racial
classifications [at issue] must stand on their own justification, as measures
designed to maintain White Supremacy."5 8 This striking reference to White
Supremacy-by a unanimous Court, capitalizing both words and speaking in
these terms for the only time in the nation's history-was designed to get at
53. Loving v. Virginia, 388 U.S. 1,3 (1967).

54. Id.
55. 347 U.S. 483 (1954).
56. Id. at 495. It should be noted that Brown, strictly speaking, was limited to the context of public
school education. Later Supreme Court cases expanded upon Brown and found racial discrimination
unconstitutional in other contexts. See, e.g., New Orleans City Park Improvement Ass'n v. Detiege, 358
U.S. 54 (per curiam) (public parks), aff'g 252 F.2d 122 (5th Cir. 1958); Gayle v. Browder, 352 U.S. 903
(per curiam) (buses), aff'g 142 F. Supp. 707 (D. Ala. 1956); Holmes v. City of Atlanta, 350 U.S. 879
(per curiam) (public golf courses), vacating 223 F.2d 93 (1955); Mayor of Baltimore v. Dawson, 350
U.S. 877 (per curiam) (public beaches), afg 220 F.2d 386 (4th Cir. 1955).
57. Loving, 388 U.S. at 2.
58. Id. at 11.
the core of Virginia's argument that discrimination on the basis of participa-

tion in mixed marriages was not discrimination on the basis of race.
The Supreme Court appeared to be making the following argument. Even
though the ban on racial marriage treats blacks and whites alike-even though
there is formal equality-the ban is transparently an effort to keep the races
separate and, by so doing, to maintain the form and the conception of racial
difference that are indispensable to White Supremacy. Viewed in context-in
light of its actual motivations and its actual effects-the ban was thus part of
a system of racial caste. Virginia really objected to racial intermixing because
it would confound racial boundaries, thus defeating what the district judge
saw as "natural" differences produced by God's plan. In a world with
miscegenation, natural differences between blacks and whites would become
unintelligible; the very word "miscegenation" would lose its meaning.
Indeed, in a world with racial mixing, it would be unclear who was really
black and who was really white. The categories themselves would be
unsettled-revealed to be a matter of convention rather than nature. In such
a world, White Supremacy could not maintain itself. Because this was the
assumption behind Virginia's law, the law stood revealed as an unacceptable
violation of the Equal Protection principle.
B. A Hypothetical Story
Now let us imagine a hypothetical case. Two women seek to marry. They
are prevented from doing so by a law forbidding same-sex marriage. They
argue first that the relevant law violates their right to be free from sex
discrimination. This seems to be a good strategic choice on their part. It is of
course well-established that laws discriminating on the basis of sex will be
subject to careful judicial scrutiny and will generally be invalidated.59 By
contrast, it also seems clear-at least for the time being-that laws discrimi-
nating on the basis of sexual orientation will be subject to deferential judicial
scrutiny and will generally be validated.60
Our hypothetical couple would therefore do very well to argue that they are
subject to discrimination on the basis of sex, not sexual orientation. They
might try to establish this argument by saying what seems clearly true, that
if one of them were a man, there would be no barrier to the marriage. The
law therefore seems to contain explicit discrimination on the basis of sex. It
treats one person differently from another simply because of gender. It is
therefore a form of sex discrimination.
This argument appears straightforward. Laws forbidding same-sex relations
do involve an explicit gender classification. Under current law, however, the
argument gets nowhere. 6' The prohibition on same-sex marriage, it is said,
59. See, e.g., Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 723-27 (1982).
60. The Court has not yet resolved this issue, however. Lower courts generally, though not
unanimously, apply "rational basis" review of laws discriminating on the basis of sexual orientation.
61. This is true at least at the federal level. With respect to application of the argument at the state
level, see Baehr v. Lewin, 852 P.2d 144 (Haw. 1993).
discriminates on the basis of sexual orientation rather than on the basis of sex.
There is no sex discrimination because women and men are treated exactly the
same. If a man wants to marry a man, he is barred; a woman seeking to marry
a woman is barred in precisely the same way. For this reason, women and
men are not treated differently. From this we see that the complaint in our
hypothetical case is really about discrimination on the basis of sexual
orientation, not about discrimination on the basis of sex. To the extent that
discrimination on the basis of sexual orientation is subject to highly
deferential "rational basis" review, resulting in the validation of most
classifications, the barrier to same-sex marriages and relations is constitution-
ally acceptable.
This is indeed the answer offered by current constitutional law. Thus
concluded the Supreme Court of Missouri as against an argument of this kind.
According to the court:
The State concedes that the statute prohibits men from doing what women
may do, namely, engage in sexual activity with men. However, the State
argues that it likewise prohibits women from doing something which men
can do: engage in sexual activity with women. We believe it applies
equally to men and women because it prohibits both classes from engaging
in sexual activity with members of their own sex. Thus, there is no denial
of equal protection on that basis.62
It will readily appear that this response is the same answer offered by the
State of Virginia in the Loving case.63 To the extent that Loving is now
believed inapposite, it is because a law forbidding racial intermarriage is now
seen as an effort to promote White Supremacy. The separation of the races,
especially in matters of sexuality and marriage, was part and parcel of the
subordination of blacks to whites. Undoubtedly, this separation was part of the
creation of a fixed category of racial differences. No one really denies this.
It seems clear that if racial mixing were common, no one would know who
is black and white; indeed the categories would lose much of their meaning.
(It even seems reasonably clear that issues of sex discrimination are at work
in this context, since the availability of black women to white men was
common, and since the miscegenation laws seem especially inspired by the
effort to prevent black men from having relations with white women.) The
effort to promote "white purity" was conspicuously intended to prevent the
various results that would come about from racial mixing. The Supreme
Court's reference to "White Supremacy" was thus both necessary and
sufficient to defeat Virginia's argument, and it was readily shown that the
miscegenation laws were connected to that constitutionally unacceptable social
institution."
For participants in the current legal system, it is much harder to say that
bans on same-sex relations are connected to a similarly unacceptable social
62. State v. Walsh, 713 S.W.2d 508, 510 (Mo. 1986) (en banc).
63. See Koppelman, supra note 49, at 149-50.
64. Loving v. Virginia, 388 U.S. 1, 7 (1967).
institution.65 Exactly how is the prohibition on same-sex marriage an effort

to promote sex inequality or even male supremacy? How can one have
anything to do with the other? Racial intermarriage was objectionable because
of its effects on racial differences (deemed natural and desirable), but thought
(by the 1960's) to have social consequences only because of social institutions
that produced a caste-like system based on race. Surely, it might be suggested,
the question of same-sex relations raises no analogous issues.
I believe that it is puzzlement about such matters that accounts for the
failure to see that Loving is a relevant or perhaps even decisive precedent for
the view that the prohibition on same-sex relations is impermissible sex
discrimination. In the end, however, Loving may well be an important
precedent for protecting same-sex relations. Very briefly: A ban on racial
intermarriage may well be part of an effort to insist that with respect to race
there are just "two kinds." The separation of humanity into two rigidly
defined kinds, white and black, is part of what White Supremacy means. Even
though some people have darker skin color than others and even though genes
do diverge, this separation is, in important respects, a social artifact. People's
genetic composition is very complex; most so-called blacks have many white
ancestors; the division of humanity into "blacks" and "whites" is hardly
determined by genetics. To say that there are just "two kinds" of people,
black and white, is not a simple report on the facts; it is instead the
construction of a distinctive and unnecessary way of thinking about human
beings. That distinctive way of thinking about human beings, to the extent that
it is converted into action based on law, raises serious problems under the
Equal Protection Clause.
It is tempting to think that the same cannot be said for the separation of
humanity into two other kinds, women and men. Perhaps that separation is
genuinely ordained by nature; perhaps it is not a social artifact at all, at least
not in the same way. Certainly there are women and men, and certainly this
fact, at least, is determined by genetics. Who would deny that the distinction
between men and women is fundamental in this sense?
But perhaps this argument goes by too quickly. It is indeed true that some
people are black, in the sense that they have African-American ancestors, and
others are white, in the sense that they do not. Very plausibly, this is no less
true, or less "factual," than the division of humanity into men and women.
The question is what society does with these facts. It is possible to think that
the prohibition on same-sex marriages, as part of the social and legal
insistence on "two kinds," is as deeply connected with male supremacy as the
prohibition on racial intermarriage is connected with White Supremacy.
Perhaps same-sex marriages are banned because of what they do to-because
of how they unsettle-gender categories. Perhaps same-sex marriages are
65. Note also that miscegenation laws attempt to keep blacks and whites apart, while bans on same-
sex relations attempt to keep men and women together. If the argument below is correct, however, this
difference does not make a difference, since the effort to keep blacks and whites apart was an effort to
maintain a caste system based on race, just as the effort to keep men and women together is-by
preventing same-sex relations-part of a system of sex-role stereotyping.
banned because they complicate traditional gender thinking, showing that the
division of human beings into two simple kinds is part of sex-role stereo-
typing, however true it is that women and men are "different."
This is not merely a philosophical or sociological observation. It is highly
relevant to the legal argument. It suggests that, like the ban on racial
intermarriage, the ban on same-sex marriages may well be doomed by a
constitutionally illegitimate purpose. The ban has everything to do with
constitutionally unacceptable stereotypes about the appropriate roles of men
and women.
Moreover, the ban may well have constitutionally unacceptable effects. It
is part of a system of sex-role stereotyping that is damaging to men and
women, heterosexual and homosexual alike, though in quite different ways.
Indeed, one of the most interesting issues has to do with the distinctive ways
in which the ban differentially harms heterosexual men, gay men, heterosexual
women, and lesbians."
In this space, I will not be able fully to defend this thesis, on which much
work remains to be done. Certainly the thesis is not belied by the fact that
some "macho" cultures do not stigmatize male homosexuality as much as
(say) the United States.67 Even in such cultures, a sharp distinction is drawn
between passivity and activity in sexual relations, and cultural understandings
of passive and active operate in gendered terms." Thus, the passive role is
both stigmatized and identified with femininity, whereas the active role is
socially respectable and identified with masculinity. In such cultures, sex-role
distinctions have somewhat different manifestations, but sex discrimination is 69
fully operative in thinking both about men and women and about sexuality.
My claim about the reasons behind the ban on same-sex marriages is in part
an empirical one; and it has suggestive empirical support in psychological
studies. For example, one social psychologist, capturing much of the general
view, finds that "a major determinant of negative attitudes toward homosexu-
ality is the need to keep males masculine and females feminine, that is, to
avoid sex-role confusion. ' 7' The evidence taken as a whole suggests that the
prohibition on homosexual relations is best seen as an effort to insist on and
to rigidify so-called natural difference, in part by crisply separating gender
roles. 71 This occurs largely by ensuring that there are firm and clear lines,
66. Cf Rich, supra note 49 (arguing that anti-lesbian views not only stigmatize lesbians apart from
other homosexuals but harm heterosexual women as well).
67. See RICHARD A. POSNER, SEX AND REASON 291 (1990).
68. Id. at 64-66, 157.
69. Id.
70. Koppelman, supra note 49, at 159 n.86 (citing A.P. MacDonald & Richard G. Games, Some
Characteristicsof Those Who Hold Positive and Negative Attitudes Toward Homosexuals, 1 J.
HOMOSEXUALITY 9, 19 (1974)); see also Marc A. Fajer, Can Two Real Men Eat Quiche Together?
Storytelling Gender-Role Stereotypes, and Legal Protectionfor Lesbians and Gay Men, 46 U. MIAMI
L. REv. 511, 617 (1992); Bernard E. Whitley, Jr., The Relationship of Sex-Role Orientation to
Heterosexuals'Attitudes Toward Homosexuals, 17 SEX ROLES 103 (1987) (examining the relationship
between traditional sex-role beliefs, sex-role self-concept, and sex-role behavior pattern on the one hand
and attitudes toward homosexuals on the other).
71. Koppelman, supra note 49, at 159 n.86.
defined in terms of gender and having what are believed to be necessary

social consequences, about sexual (and social) activity, as opposed to sexual
(and social) receptivity or passivity. The definition of men as essentially
active in social and sexual arenas, and of women as essentially passive in both
places, helps undergird sex inequality. I am speculating that it simultaneously
helps account for the prohibition of same-sex relations. The social opprobrium
directed against homosexuals may well be an outgrowth of the ways in which,
for heterosexuals, the existence of homosexuality draws into question familiar
ideas about the sex difference.
There are important distinctions here between the reasons that underlie the
stigmatization of, or the prohibition on, male homosexual relations on the one
hand and those that account for bans on female homosexual relations on the
other. The evidence suggests that the social opprobrium against male
homosexuality comes largely from the perceived unnaturalness of male
passivity in sex. 2 The male heterosexual opposition to male homosexuality
stems largely from the desire to stigmatize male sexual passivity. We might
speculate that subjection to sexual aggression of this kind is especially
troublesome because, in a way, it turns men into women, 3 and in this way
complicates ordinary views about the sex difference.
Thus, it is a familiar part of violent male encounters that the victim will be
feminized, as in the boxer Mike Tyson's remark to challenger Donovan
"Razor" Ruddock: "I'm going to make you my girlfriend."7 4 I suggest that
far from being an oddity, this comment says something deeply revealing about
the relationship between same-sex relations and the system of caste based on
gender.
Again speaking speculatively, the ban on lesbian relations appears to stem
from quite different concerns. 5 Part of the purpose of such bans may be to
ensure that women are sexually available to men;7 6 the institution of
lesbianism has been problematic partly for this reason. Another part of the
concern may be the fact that lesbianism also complicates gender difference by
creating a sexually active role for women, 7 one that also undermines
existing conceptions of natural difference. It is for this reason familiar to see
that socially active women are stigmatized as lesbians. Indeed, a charge of
lesbianism is a standard delegitimating device operating against women who
have assumed stereotypically male social roles.7 8 There is thus a close
connection between sex inequality and the prohibition on lesbianism.
I am inclined to think that considerations of this sort may help to maintain
the legal and social taboo on homosexuality, in a way that might well be
damaging to both men and women, heterosexual and homosexual alike, though
72. See Fajer, supra note 70, at 623-24.

73. Cf MACKINNON, FEMINISM UNMODIFIED, supra note 46.
74. Mike Downey, Fightingthe War of Words, L.A. TIMES, June 19, 1991, at Cl, C9.
75. See Rich, supra note 49, at 36-37.
76. See id. at 36.
77. See id.
78. See MACKINNON, FEMINISM UNMODIFIED, supra note 46, at 122 ("[W]omen athletes are
routinely accused, explicitly or implicitly, of being lesbian.").
of course in very different ways and to quite different degrees. The distinction
between the rigid categories "male" and "female," with the accompanying
social and sexual traits "active" and "passive," has especially conspicuous
harmful effects for gay men and lesbians. But for all of us, the categories and
the traits are much too crude to account for social and sexual life when both
of these are going well. For heterosexual women as well, the distinction can
be highly damaging because it is rigidly confining and untrue to the
complexity of their experience, even when their sexual attraction is directed
to men. The damage is closely connected to the castelike features of the
current system of gender relations. For heterosexual men, very much the same
is true since a degree of passivity in society and in sexual relations is both an
inevitable and a desirable part of life, and since it is such an unnecessary
burden to be embarrassed by or ashamed of this.
These are speculative and brisk arguments. They might properly be
questioned on the ground that they depend on social and psychological claims
that are not obviously right, that they require far more support than provided
here, or that they are too uncertain to warrant judicial endorsement. Certainly
I have not provided the full defense that would be needed to translate this
argument into constitutional law. But formal sex inequality is an explicit part
of the ban on same-sex relations, and there is good reason to think that formal
inequality stems from impermissible sex-role stereotyping. While judges
should probably not accept this argument today, it may ultimately be
concluded, outside if not inside the courtroom, that the prohibition on same-
sex relations is a form of discrimination on the basis of sex, just as the
prohibition on miscegenation was a form of discrimination on the basis of
race. Both prohibitions are invalid under the Equal Protection Clause.
IV. PRUDENCE AND CONSTITUTIONALISM: THE

EXAMPLE OF ABRAHAM LINCOLN7 9
Abraham Lincoln always insisted that slavery was wrong. On the basic
principle, Lincoln allowed no compromises. No justification was available for
chattel slavery. But on the question of means, Lincoln was quite equivo-
cal-flexible, strategic, open to compromise, aware of doubt. The fact that
slavery was wrong did not mean that it had to be eliminated immediately, or
that blacks and whites had to be placed immediately on a plane of equality.
In Lincoln's view, the feeling of "the great mass of white people" would not
permit this result.80 In his most striking formulation, he declared: "Whether
this feeling accords with justice and sound judgment, is not the sole question,
if indeed, it is any part of it. A universal feeling, whether well or ill-founded,
can not be safely disregarded.""'
79. See generallyALEXANDER M. BICKEL, TE LEAST DANGEROUS BRANCH 64-68 (1962); HARRY
V. JAFFA, CRISIS OF A HOUSE DIVIDED (1959).
80. BICKEL, supra note 79, at 66 (quoting Abraham Lincoln, speech at Peoria, Illinois (Oct. 16,
1854), in 2 THE COLLECTED WORKS OF ABRAHAM LINCOLN 256 (Roy P. Basler ed., 1953)).
81. Id.
INDIANA LAW JOURNVAL [Vol. 70:1
In Lincoln's view, efforts to create immediate social change in this

especially sensitive area could have unintended consequences or backfire,
even if those efforts were founded on entirely sound principle. It was
necessary first to educate people about the reasons for the change. Passions
had to be cooled. Important interests had to be accommodated or persuaded
to join the cause. Issues of timing were crucial. Critics had to be heard and
respected. For Lincoln, rigidity about the principle would always be combined
with caution about introducing the means by which the just outcome would
be achieved. For this reason, it is a mistake to see Lincoln's caution about
abolition as indicating uncertainty about the underlying principle. But it is
equally mistaken to think that Lincoln's certainty about the principle entailed
immediate implementation of racial equality.
As Alexander Bickel has emphasized, the point is highly relevant to
constitutional law, especially in the area of social reform. 2 As it operates
in the courts, constitutional law is a peculiar mixture of substantive theory and
institutional constraint. The best substantive thinking might call, for example,
for a vigorous and immediately vindicated anticaste principle, more aggres-
sively counteracting race and sex inequality than has the Supreme Court. But
because of institutional constraints, courts might be reluctant to vindicate that
right or to enforce that principle. Constitutional rights might therefore be
systematically underenforced by the judiciary for good institutional reasons."
Those reasons have to do with the courts' limited factfinding capacity, their
weak democratic pedigree, their limited legitimacy, and their likely futility as
frequent instigators of social reform.
To reach this conclusion in any particular area, we would of course have to
spell out the substantive principle and the institutional constraints in some
detail. But often there is plausibly a difference between the real extension of
a constitutional principle and the judicial enforcement of that principle. There
might therefore be some space or gap between what courts are (properly)
willing to require and what the Constitution is (properly) interpreted to mean.
For instance, in the area of welfare rights, the point seems readily visible.
Let us suppose (to be sure, very controversially) that the Constitution should
be interpreted to create such rights in the form of minimum guarantees of
subsistence, on the theory that the equal protection of the laws so requires."
Judicial enforcement of welfare rights might call for a difficult managerial
role. Courts would have to oversee complex institutions in order to ensure
vindication of the relevant rights. Because of the distinctive nature of the
welfare problem, the creation of subsistence rights might have adverse effects
on other programs with equally compelling claims to the public fisc. To say
the least, courts are not well-positioned to see those adverse effects. The
managerial role is one for which they are ill-suited. This point applies in
many areas of social reform in which courts are asked to act.
82. Id. at 68.

83. Cf Lawrence G. Sager, The Legal Status of Underenforced ConstitutionalNorms, 91 HARV.
L. REV. 1212 (1978).
84. See, e.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1643-72 (2d. ed. 1988).
In the area of sex discrimination, such managerial issues are not necessarily
present. Suppose, for example, that the ban on same-sex marriage is
challenged on equal protection grounds. Here, ongoing judicial supervision of
complex institutions is not really at issue. Nonetheless, there is reason for
great caution on the part of the courts. An immediate judicial vindication of
the principle could well jeopardize important interests. It could galvanize
opposition. It could weaken the anti-discrimination movement itself. It could
provoke more hostility and even violence against gays and lesbians. It could
jeopardize the authority of the judiciary. It could well produce calls for a
constitutional amendment to overturn the Supreme Court's decision.85
At a minimum, courts should generally use their discretion over their
dockets in order to limit the nature and the timing of relevant intrusions into
the political process. Courts should also be reluctant to vindicate even good
principles when the vindication would clearly compromise other important
interests, including ultimately the principles themselves.
Consider, for example, the issue of abortion. Suppose we think that
restrictions on abortion violate the right of privacy or (in an argument more
congenial to that offered here) that such restrictions deny women the right to
equal protection of the laws.86 Is it therefore clear that Roe v. Wade87 was
rightly decided? Surely not. The precipitous vindication of the relevant
principle might well have been a mistake.' Indeed, it is for this reason, and
not because of any supposed abuse of interpretive authority, that Roe may
have been wrong when initially decided.
It seems at least reasonable to think that the Roe decision prematurely
committed the nation to a principle toward which it was in any case steadily
moving, and that the premature judicial decision had a range of harmful
consequences. These included the creation of the Moral Majority, the death
of the Equal Rights Amendment, the galvanizing of general opposition to the
women's movement, the identification of that movement with the single issue
of abortion, the dampening of desirable political activity by women, and the
general transformation of the political landscape in a way deeply damaging
to women's interests. 89 This result suggests that even if discrimination on the
basis of sexual orientation is often a violation of the Equal Protection Clause,
courts should be cautious and selective in vindicating that principle.
In the area of homosexuality, we might make some distinctions. Certain
imaginable rulings would minimally stretch judicial capacities and authority;
other imaginable rulings would pose problems of judicial prudence in their
85. Compare the decision of the Hawaii Supreme Court in Baehr v. Levin, 852 P.2d 144 (Haw.
1993). An advantage of a federal system is that it allows successful experiments in constitutional law
at the state level.
96. See SUNSTEIN, PARTAL CONSrITrION, supra note 41, at 270-85.
87. 410 U.S. 113 (1973).
88. I therefore agree with the controversial remarks on the abortion issue by then-Judge Ginsburg.
See Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63
N.C. L REV. 375 (1985).
89. Some of these claims are made in GERALD N. ROSBERo, THE HOLLOW HOPE: CAN COURTS
BRING ABOUT SOCIAL CHANGE? (1992).
most severe form. For example, the argument I have explored here-for the
proposition that same-sex relations and even same-sex marriages may not be
banned consistently with the Equal Protection Clause-is, to say the least,
quite adventurous. If the Supreme Court of the United States accepted the
argument in 1995, or even in 1996 or 1997, it might cause a constitutional
crisis, a weakening of the legitimacy of the Court, an intensifying of
homophobia, a constitutional amendment overturning the Court's decision, and
much more. Any Court, even one committed to the basic principle, should
hesitate in the face of such prospects. It would be far better for the Court to
start cautiously and to proceed incrementally.
The Supreme Court might, for example, accept the most narrow arguments,
and reject or (better) avoid passing on the more general and intrusive ones.
It might conclude that the Equal Protection Clause forbids state constitutional
amendments that interfere with the attempts of ordinary democratic processes
to outlaw discrimination on the basis of sexual orientation. The Court might
say that such amendments do not merely discriminate on the basis of sexual
orientation, but also disfavor a defined group in the political process in a way
that involves issues of political equality.
Alternatively, the Supreme Court might say-as some lower courts have-
that government cannot rationally discriminate against people of homosexual
orientation without showing that those people have engaged in acts that harm
a legitimate government interest. Courts could recognize that discrimination
on the basis of orientation alone has the basic characteristics of a "status
offense" disfavored in American law.90 Despite its problems, "rationality"
review might well be the best route here. Narrow rulings of this sort would
allow room for public discussion and debate before obtaining a centralized
national ruling that preempts ordinary political process over a moral issue
about which society is in a state of evolution.
We can go further. Constitutional law is not only for the courts; it is for all
public officials. The original understanding was that deliberation about the
Constitution's meaning would be part of the function of the President and
legislators as well. There was not supposed to be a judicial monopoly on that
process. 9' The post-Warren Court identification of the Constitution with the
decisions of the Supreme Court has badly disserved the traditional American
commitment to deliberative democracy. In that system, all officials, not only
the judges, have a duty of fidelity to the founding document. And in that
system, elected officials will have a degree of interpretive independence from
the judiciary. They will sometimes fill the institutional gap created by the
courts' lack of factfinding ability and policy-making competence.92 For this
reason, they may conclude that practices are unconstitutional even if the Court
would uphold them, or that practices are valid even if the Court would
invalidate them. Lincoln is an important example here as well. Often, he
90. See, e.g., Robinson v. California, 370 U.S. 660 (1962).

91. See StINsTEIN, PARTIAL CONSTITUTION, supra note 41, at 9.
92. See generally id. at 151-53 (urging that legislators should interpret the Constitution more
broadly than courts).
1994] HOMOSEXUALIT AND THE CONSTITUTION
invoked constitutional principles to challenge chattel slavery, even though the

Supreme Court had rejected that reading of the Constitution.
Whatever the Supreme Court may say or do, it is therefore crucial for
elected officials and even ordinary citizens to contend that discrimination on
the basis of sexual orientation is incompatible with constitutional ideals. For
example, the President has far more room to reach such conclusions than does
the Court. But even a President determined to end such discrimination would
not fare well if he insisted on immediate vindication of the principle. Instead,
the President should be pragmatic and strategic. Following Lincoln's example,
a President might insist, in all contexts, that this form of discrimination is
wrong because it violates the most basic ideals of the Constitution. Indeed, it
is both right and good for the President to show the connection between
discrimination on the basis of sexual orientation and other forms of discrimi-
nation, most notably discrimination on the basis of sex.
In implementing the relevant principles, however, there is room for caution
and care. Like the Supreme Court, the President and other officials can be
selective about putting relevant issues on the agenda. Public officials might
use especially egregious cases-involving, for example, discharge of qualified
soldiers from the military, or discrimination against people with AIDS-to
give weight to the principle in contexts in which it seems most acceptable.
They can start slowly with the easiest areas. One of their major goals should
be education. A relatively radical attack on the prohibition of same-sex
marriages might come many years down the road, when the basic principle
has been vindicated in many other less controversial contexts. But even if the
principle is held firmly in view, and even if it is seen as part of a constitu-
tional mandate, its vindication in American law and life need not be
immediate-largely because an immediate insistence on principle would
compromise so many other social goals, including those that underlie the
principle itself.
CONCLUSION
In the 1990's, discrimination on the basis of sexual orientation promises to

be one of the most important issues in constitutional law. Most of this
discrimination is constitutionally troublesome in its own right because it is
based on simple prejudice and hostility. There is even a connection between
discrimination on the basis of sexual orientation and discrimination on the
basis of sex. In the long run, I suspect, the ban on same-sex relations will be
seen as having much the same relationship to male supremacy as did the ban
on mixed marriages to White Supremacy. Loving is therefore a key case for
those seeking to use the Constitution to counteract both sex discrimination and
discrimination on the basis of sexual orientation.
This does not mean that current courts should require states to allow same-
sex marriages. Under contemporary conditions, a judicial holding of this sort
would probably be a large mistake, even though the basic principle is sound.
It would be far better for courts to proceed slowly and incrementally. I have
suggested that they should build on "rationality review" in the most egregious
28 INDIANA LAW JOURNAL [Vol. 70:1
cases and also invalidate measures that combine restrictions on the democratic
process with discrimination. Broader rulings should be avoided. Elected
officials, including the President, have somewhat more flexibility in carrying
out their own independent constitutional responsibilities.
There is good reason to think that before terribly long, discrimination on the
basis of sexual orientation will be seen as a product of unthinking prejudice
and hostility, much like discrimination on the basis of race and gender. Courts
can play a part in this process, requiring tangible justifications for the
infliction of social harm, fortifying the process of democratic deliberation, and
requiring genuine reason-giving in all cases of discrimination. But the judicial
role, though important, is secondary. If discrimination against homosexuals
is eventually to be seen-as I think that it should-to be inconsistent with
constitutional principles, it will be the result of an extended process of
deliberation, in which courts play an occasionally catalytic but far from
decisive role.

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Indiana Law Journal

Volume 70 Issue 1 Article 1

Homosexuality and the Constitution

Follow this and additional works at: https://www.repository.law.indiana.edu/ilj

This Article is brought to you for free and open access by

Decisions of individuals relating to homosexual conduct have been subject

I'm going to make you my girlfriend.

Unexpectedly, discrimination on the basis of sexual orientation has become

* Karl N. Llewellyn Professor of Jurisprudence, University of Chicago Law School and

In applying the Constitution to issues involving homosexuality, there is a

It is perhaps most tempting to apply the right of privacy-a form of

3. See JOHN H. ELY, DEMOCRACY AND DISTRUST 15-18 (1980).

"privacy" rights usually are rooted in Anglo-American traditions, which often

B. Equality and Irrationality

Because the Equal Protection Clause was designed as an attack on

2. Equality and Rationality

highly reluctant to invalidate laws on grounds of irrationality, identifying that

Consider finally the interests that justify constitutional bans on laws

C. Equality and Suspect Classes

Perhaps it should be argued that discrimination on the basis of sexual

women. The category of political powerlessness looks like an inquiry into

25. See, e.g., Frontiero, 411 U.S. 677, 686-87.

D. PoliticalRights and Equality Rights

Some states have enacted or are considering constitutional amendments that

26. Amendment 2 to COLO. CONST. art. II, § 2 (adopted Nov. 3, 1992).

E. Equality, Sex Discrimination,and Homosexuality

To approach the possibility of a link between discrimination on the basis of

II. THE ANTICASTE PRINCIPLE

largely because of the presence of the morally irrelevant characteristic that

B. Are Women Different? Does It Matter If They Are?

We are now in a position to make some general observations about the

partly an artifact of a discriminatory status quo. Of course, current views of

III. ON SEX DIFFERENCE AND SEXUAL ORIENTATION

I now examine the relationship between sex discrimination and discrimina-

53. Loving v. Virginia, 388 U.S. 1,3 (1967).

the core of Virginia's argument that discrimination on the basis of participa-

institution.65 Exactly how is the prohibition on same-sex marriage an effort

defined in terms of gender and having what are believed to be necessary

72. See Fajer, supra note 70, at 623-24.

IV. PRUDENCE AND CONSTITUTIONALISM: THE

In Lincoln's view, efforts to create immediate social change in this

82. Id. at 68.

90. See, e.g., Robinson v. California, 370 U.S. 660 (1962).

invoked constitutional principles to challenge chattel slavery, even though the

In the 1990's, discrimination on the basis of sexual orientation promises to

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