IX. HUMAN RIGHTS AND U.S. LEGAL STANDARDS

All human beings are born free and equal in dignity and rights.
-Universal Declaration of Human Rights, article 1

The discrimination against gay and lesbian servicemembers embodied in and sanctioned by "don't ask, don't tell," should embarrass the United States-a country that holds itself out internationally as a human rights champion. The policy cannot survive scrutiny under internationally affirmed human rights principles protecting the right to privacy and prohibiting discrimination. Unfortunately, U.S. constitutional jurisprudence has not incorporated those international human rights law protections: the U.S. Supreme Court has refused to extend the due process right of privacy to sexual relations between homosexuals, and federal courts of appeal have rejected arguments that discharging service members who acknowledge their homosexuality violates the constitutional prohibition on discrimination.

Human Rights Law
Right to Privacy
The International Covenant on Civil and Political Rights (ICCPR), which the United States ratified in 1992, expressly affirms the right to privacy (Article 17). So do regional human rights treaties such as the American Convention on Human Rights (Article 11) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 8). Under Article 17 of the ICCPR, "No one shall be subjected to arbitrarily or unlawful interference with his privacy" and everyone has "the right to the protection of the law against such interference."²⁰¹
The scope of the internationally protected right to privacy extends beyond home, family, correspondence, or property, to include "that particular area of individual existence and autonomy that does not touch upon the sphere of liberty and privacy of others."²⁰² The Human Rights Committee-the international body responsible for interpreting obligations under the ICCPR-and the European Court of Human Rights have both recognized that protected privacy includes adult consensual sexual activity in private.
In 1992, the Human Rights Committee ruled that sodomy legislation in the Australian state of Tasmania, which criminalized private sexual contact between men, constituted an impermissible interference with the right of privacy.²⁰³ The committee rejected claims by Tasmanian authorities that the law was justified on moral grounds.²⁰⁴ Pointing to the repeal of laws criminalizing homosexual sex throughout the rest of Australia, and the fact that even in Tasmania the law was not enforced, the committee concluded that the sodomy law was not "essential to the protection of morals in Tasmania" and thus arbitrarily interfered with the right to privacy.

The European Court of Human Rights (ECHR) has also found that laws criminalizing same-sex sexual activity between adult men impermissibly interfered with the right to privacy protected by Article 8 of the European Convention on Human Rights.²⁰⁵ In Dudgeon v. The United Kingdom (1981), the court assessed the validity of nineteenth century laws still in force in Northern Ireland that criminalized acts of buggery and gross indecency between males of any age, whether in public or private. Characterizing private sexual activity as "an essentially private manifestation of the human personality," the court agreed that laws criminalizing such activity implicated the right to privacy affirmed by Article 8.²⁰⁶ Under Article 8, interference with the right to privacy is permitted only to "the extent necessary in a democratic society in the interests of national security, public safety ... for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."²⁰⁷

Turning to whether the criminalization of homosexual activity was a permissible interference, the court acknowledged that some degree of regulation of male homosexual conduct, "as indeed of other forms of sexual conduct" is necessary, e.g. laws to protect against the exploitation and corruption of minors. But there was no "pressing social need" addressed by the challenged law, "there being no sufficient justification provided by the risk of harm to vulnerable sections of society requiring protection or by the effects on the public."²⁰⁸ The belief by some in Northern Ireland that homosexuality is immoral was not an adequate justification for interfering with the right to privacy:

Although members of the public who regard homosexuality as immoral may be shocked, offended or disturbed by the commission by others of private homosexual acts, this cannot on its own warrant the application of penal sanctions when it is consenting adults alone who are involved.... In particular, the moral attitudes towards male homosexuality in Northern Ireland and the concern that any relaxation in the law would tend to erode existing moral standards cannot, without more, warrant interfering with the applicant's private life to such an extent.²⁰⁹

In subsequent cases, the European Court of Human Rights has reiterated its view that that laws criminalizing private consensual sex between adult males are impermissible infringements on the right to privacy.²¹⁰

Applying the standards and reasoning employed in Dudgeon and its successor cases, the European Court of Human Rights ruled against the United Kingdom's policy prohibiting homosexuals from serving in the armed forces. The policy required the immediate discharge of any homosexual servicemember, regardless of the individual's conduct or service record. In Lustig-Prean v. The United Kingdom, the court held unanimously that the exclusion of homosexuals from the United Kingdom's armed forces was an impermissible interference with the respect for private life guaranteed in Article 8 of the European Convention on Human Rights.²¹¹

The court's reasoning is illuminating as a point of reference for challenges to "don't ask, don't tell." There was no dispute that the policy interfered with privacy interests as it addressed "a most intimate part of an individual's private life." The court therefore considered whether the interference was "necessary in a democratic society"²¹² The court "underline[d] the link between the notion of `necessity' and that of a `democratic society,' the hallmarks of the latter including pluralism, tolerance and broadmindedness."²¹³ It considered "whether, taking account of the margin of appreciation open to the state in matters of national security, particularly convincing and weighty reasons exist by way of justification" for discharging members of the armed forces simply because of their homosexuality.²¹⁴

The United Kingdom did not try to justify its policy by arguing homosexuals lacked the physical capability, courage, dependability, or other skills necessary to serve in the armed forces. Rather, relying heavily on interviews with a sample of service members, it argued that the presence of open or suspected homosexuals in the armed forces would have a substantial negative effect on military morale, and, consequently, the fighting power and operational effectiveness of the armed forces. Although the court recognized the importance of deference to military judgment with regard to military policies and operations, it nonetheless refused to accept the military's reasons as adequate justification for the policy. The court noted that the United Kingdom had presented no evidence of actual problems arising on account of homosexual members. More importantly, it concluded that the alleged adverse impacts on morale and esprit would arise from the negative attitudes of heterosexual personnel towards those who are homosexual:

[T]he perceived problems [identified in interviews] and threat to the fighting power and operational effectiveness of the armed forces were founded solely upon the negative attitudes of heterosexual personnel towards those of homosexual orientation... [T]hese attitudes, even if sincerely felt by those who expressed them, ranged from stereotypical expressions of hostility to those of homosexual orientation, to vague expressions of unease about the presence of homosexual colleagues. To the extent that they represent a predisposed bias on the part of a heterosexual majority against a homosexual minority, these negative attitudes cannot, of themselves, be considered by the court to amount to sufficient justification for the interference [with the right to privacy] any more than similar negative attitudes towards those of a different race, origin or colour.²¹⁵

Refusing to uphold a policy predicated on a heterosexual majority's bias against a homosexual minority, the court insisted that the United Kingdom would have to permit homosexuals to serve in its armed forces.²¹⁶ While the court recognized that certain difficulties might arise as the military adjusted to a new policy, it believed that inappropriate behavior-by homosexuals or heterosexuals-could be addressed by strict codes of conduct and disciplinary rules, and that education, training, and leadership could help address prejudice and intolerance, as it had when the military permitted women and members of racial minorities to serve. The United Kingdom argued that homosexuality raised problems of a type and intensity that race and gender did not, and pointed to the particular problems that might be posed by homosexuals and heterosexuals sharing communal accommodations. The court nevertheless remained "of the view that it has not been shown that the conduct codes and disciplinary rules ... could not adequately deal with any behavioral issues arising on the part either of homosexuals or of heterosexuals."²¹⁷ Finally, the court pointed to the notable and widespread changes in the domestic laws of European countries permitting the admission of homosexuals into the armed forces, noting that only a small minority of European countries had a blanket legal ban against homosexuals in their armed forces.

Equal Rights and Nondiscrimination
The Human Rights Committee and the European Court of Human Rights have also considered "equal rights" challenges to rules criminalizing homosexual conduct or otherwise drawing distinctions based on sexual orientation.
Article 26 of the ICCPR affirms that "all persons are equal before the law and are entitled without any discrimination to the equal protection of the law." The guarantees of equality before the law and the equal protection of the laws prevent a government from arbitrarily making unfavorable distinctions among classes of persons in promulgating and enforcing its laws. As the Human Rights Committee has concluded, Article 26 "prohibits discrimination in law or in fact in any field regulated and protected by the public authorities," whether or not the legislation covers a right guaranteed in the covenant.²¹⁸ In particular, under Article 26, "the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status."²¹⁹
A related provision of the ICCPR provides that the state may not discriminate in securing the fundamental rights and liberties guaranteed in the convention. Article 2 of the ICCPR requires states parties to "respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status."
Neither Article 2 nor Article 26 of the ICCPR explicitly prohibits discrimination based on sexual orientation. Nevertheless, the examples of impermissible bases for discrimination are not exclusive; the articles also refer to "other status." The ICCPR's reference to "other status" was an effort to encompass persons or groups distinguished by characteristics that are immutable and/or that constitute essential elements of a personality or identity. According to Manfred Nowak, a leading scholar on the scope of rights guaranteed by the ICCPR, "In the final analysis, every conceivable distinction that cannot be objectively justified is an impermissible discrimination."²²⁰
Human Rights Watch considers sexual orientation to qualify as a "status" protected against discrimination. Although sexual orientation is only one aspect of a person's identity, in many countries, including the United States, individuals who are gay or lesbian are frequently viewed as a distinct class of persons, a view often expressed through laws discriminating against them, and/or through private acts of bias and discrimination. Homosexuals in the United States and in other countries are also often subjected to harassment, violence, and other discrimination solely because of their sexual orientation.
The Human Rights Committee has not ruled whether sexual orientation constitutes an "other status." But in the Toonen matter, discussed above, it interpreted the ICCPR's prohibition on discrimination based on sex in Article 2 and Article 26 to include a prohibition on discrimination on the basis of sexual orientation.²²¹ Although the committee did not explain its reasoning, many cases of discrimination on the basis of sexual orientation also constitute discrimination on the basis of sex. This is particularly true of cases that involve same-sex relationships. For example, a female soldier dismissed under the "don't ask, don't tell" policy for dating another woman is discriminated against on the basis of sex as well as sexual orientation, because she would not be dismissed in the same circumstances if she were a man.
The prohibition of discrimination does not mean that every distinction is impermissible. As the Human Rights Committee observed, "not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant."²²² To date the committee has not directly ruled on whether laws penalizing consensual adult homosexual conduct violate Article 26. In the Toonen case, the government of Australia recognized that Tasmania's sodomy laws, while specifically targeting "unnatural sexual intercourse," also had the purpose of distinguishing an identifiable class of individuals-male homosexuals-and prohibiting certain of their acts, a purpose the public clearly understood. There was little dispute that if the laws unreasonably interfered with homosexuals' privacy interests, that they would also constitute a violation of Article 2(1), which requires state parties to ensure all individuals are able to enjoy rights protected under the ICCPR without discrimination. In this context, the Human Rights Committee limited itself to a finding of violations under Articles 17(1) and 2(1) and deemed it unnecessary to consider whether there had also been a violation of Article 26.
The European Court of Human Rights has dealt similarly with claims that laws against homosexual conduct are discriminatory as well as an interference with the right to privacy. In Dudgeon, once it found a violation of Article 8 on privacy, the ECHR refused to consider whether the laws criminalizing male homosexual conduct also constituted discrimination in violation of Article 14.²²³
In Lustig-Prean, the court also refused to rule on the merits of the claim of discrimination under Article 14. It ruled that the applicants' complaints of discrimination amounted "in effect to the same complaint, albeit seen from a different angle, that the court has already considered in relation to Article 8 of the convention [right to privacy.]"²²⁴

U.S. Law

Right to Privacy
Unlike the ICCPR and the European Convention, the U.S. Constitution contains no express provision affirming the right to privacy. As a state party to the ICCPR, however, the United States is bound to honor the rights affirmed in that covenant.²²⁵

The U.S. Supreme Court has established that the right to substantive due process protected by the Fifth and Fourteenth Amendments embraces certain privacy interests-including the right to make personal decisions regarding family, marriage, and procreation-perceived as inherent in the concept of liberty on which the constitution was predicated. Nevertheless, in Bowers v. Hardwick, a five-to-four majority of the Supreme Court upheld the constitutionality of a Georgia law that criminalized sodomy.²²⁶ Hardwick was charged with violating that law after police entered his bedroom and caught him engaged in oral sex with another adult male. The federal court of appeals held that the Georgia statute violated Hardwick's fundamental rights because his homosexual activity was a private and intimate association beyond reach of state regulation under the due process clause of the fourteenth amendment. In reversing, the Supreme Court did not analyze the case in terms of the values that underlie and inform the constitutional right to privacy, nor did it explore whether sex between consenting adults constituted the kind of intimate decision-making and association that should be left free from government interference. It did not view the case, as the dissent believed, as requiring consideration of the fundamental "right to be left alone."²²⁷ Instead, it characterized the question before it simply as whether there was a fundamental right to engage in homosexual sodomy. Pointing to the longstanding history of criminalization of sodomy, it considered "facetious" the idea that the right to engage in such conduct was implicit in liberties protected by the constitution. Having disposed of the claim that the sodomy statute implicated a fundamental "right," the court considered whether there was at least a rational basis for the law. It found such a basis in the presumed belief of a majority of Georgians that "homosexual sodomy is immoral and unacceptable."²²⁸

Right to Equal Protection
With the U.S. Supreme Court having ruled that the U.S. Constitution does not forbid laws criminalizing homosexual sex, challenges to the U.S. military's policies toward gay men and lesbians have not been able to assert violations of protected privacy interests, as was done in Lustig-Prean. Servicemembers bringing constitutional challenges to "statement" discharges under "don't ask, don't tell" have argued instead that the policy violates their right to equal protection under the laws as well as the right to free expression. Their arguments have failed in the courts: not one of the four federal appeals courts that have considered "don't ask, don't tell" has found the policy unconstitutionally discriminatory or as impermissibly limiting free expression.²²⁹

The U.S. Constitution guarantees all persons equal protection of the laws.²³⁰ As the U.S. Supreme Court has noted, however, the right to equal protection "must co-exist with the practical necessity that most legislation classifies [people] for one purpose or another, with resulting disadvantage to various groups or persons."²³¹ In determining whether a legislative classification is unconstitutionally discriminatory, U.S. courts use different standards of scrutiny depending on whether a protected right is being burdened and according to the nature of the classification. A state must show a compelling justification for laws that impose burdens on fundamental rights, such as the right to vote or to have access to the courts.²³² When a state has created classifications based on race, ancestry, sex, and illegitimacy, the courts also subject the laws to heightened scrutiny.²³³ All other classifications need only meet the lesser, and often toothless, standard of having a rational basis.²³⁴

In Romer v. Evans, the U.S. Supreme Court confronted a Colorado state constitutional amendment directed at homosexuals that prohibited any legislative or judicial action protecting against discrimination on the basis of sexual orientation.²³⁵ The court said that the proper standard of scrutiny was simply that of ascertaining whether the amendment had a rational basis-although in fact it subjected the law to a more searching inquiry.

Even when the state distinguishes among people in ways that do not implicate fundamental rights or create "suspect" classifications, it cannot act out of prejudice or out of a desire to harm a politically unpopular group.²³⁶ In finding the Colorado amendment unconstitutional, the U.S. Supreme Court held:

We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A state cannot so deem a class of persons a stranger to its laws.²³⁷

In upholding the constitutionality of "don't ask, don't tell," the federal appellate courts have subjected the policy to a minimal standard of review, inquiring only whether the different rules for homosexual than for heterosexual servicemembers served a legitimate government interest. The courts' decisions exhibit traditional judicial deference to Congress and the executive branch with respect to decisions regarding military affairs.²³⁸ They also exhibit a great reluctance to overturn a "carefully crafted national political compromise" that evolved from extensive negotiations between Congress and the executive branch and numerous congressional hearings.²³⁹ The courts accepted at face value the views of the policy's proponents that preventing homosexual conduct by servicemembers is essential to protecting military morale and unit cohesion. They concluded that the discrimination against homosexuals embodied in the policy furthers the legitimate goal of protecting military combat effectiveness and thus was not unconstitutionally discriminatory.

The government presented no evidence in the "don't ask, don't tell" cases of actual problems arising from the presence of gay men and lesbians in the U.S. military; it relied instead on the military's views of what would happen. The courts of appeal did not inquire-as the European Court of Human Rights did in Lustig-Prean-whether the predicted harm to morale or unit cohesion from permitting open homosexuals to serve would be the result of heterosexual biases and prejudices. They thus avoided the question of whether the constitution should sanction military policies accommodating such prejudice.²⁴⁰ The dissent in one of the cases, Thomasson v. Perry, was willing to confront that question, concluding "... the same concept of liberty for all that protects our prejudices precludes their embodiment in the law ... But for fear and prejudice against homosexuals, the policy would be unnecessary."²⁴¹

The appellate courts have also accepted the military's view that "don't ask, don't tell" only punishes conduct-not the status of being gay or lesbian. They have agreed that discharges based on statements acknowledging homosexuality are conduct discharges, because affirmations of homosexuality indicate a propensity to act. In the courts' judgment, discharges based on statements acknowledging homosexuality were a reasonable way of diminishing the likelihood of homosexual conduct by servicemembers. As the court in Thomasson noted, a presumption of propensity to engage in prohibited sexual conduct is a "sensible inference raised by a declaration of one's sexual orientation."²⁴² Another court noted that even if legislative assumptions about the connection between acknowledgement and likelihood of acting were imperfect, they were nonetheless "sufficiently rational to survive scrutiny."²⁴³ In dissent, one judge questioned how one could be punished for admitting an orientation that itself is not a bar to service. He concluded the policy was "fraught ... with patent disingenuousness." ²⁴⁴

First Amendment
Servicemembers have also claimed that military discharges based on no more than statements acknowledging homosexuality violate the freedom of speech protected by the First Amendment. These First Amendment challenges to "don't ask, don't tell" have foundered on the courts' willingness to accept the military's argument that the policy punishes conduct, not speech. They have agreed that servicemembers discharged for acknowledging their homosexual orientation are penalized because their statements are presumptive evidence of the likelihood of impermissible conduct. According to the courts' reasoning, since the military does not violate the constitution in making homosexual conduct the basis of discharge, it does not violate the constitution by trying to prevent such conduct by discharging those whose words indicate a propensity to engage in it.

In contrast, a lower court ruling-subsequently reversed on appeal-found that the policy violated the right of free speech. Characterizing the distinction between "orientation" and "propensity" as "nothing less than Orwellian," Judge Eugene H. Nickerson stated:

Plaintiffs have done no more than acknowledge who they are, that is, their status. The speech at issue in this case implicates the First Amendment value of promoting individual dignity and integrity, and thus is protected by the First Amendment from efforts to prohibit it because of its content.... [The U.S. government] designed a policy that purportedly directs discharges based on "conduct" and craftily sought to avoid the First Amendment by defining "conduct" to include statements revealing one's homosexual status. To say "I have a homosexual orientation," a mere acknowledgment of status, is thus transmogrified into an admission of misconduct, and misconduct that the speaker has the practically insurmountable burden of disproving.²⁴⁵

Constitutional jurisprudence on gay rights, at least as regards sodomy laws, may soon change. On December 2, 2002 the U.S. Supreme Court agreed to hear Lawrence v. Texas, a case in which two gay men challenge a Texas law that treats same-sex couples as criminals for engaging in sexual practices that are legal when a men and a woman engage in them.²⁴⁶ While there is no guarantee that the court will overturn Bowers, it is unlikely that it would have agreed to take the case unless a majority of justices had concluded they wanted to revisit the courts jurisprudence with regard to criminal sodomy laws.

In Romer v. Evans, the Supreme Court's decision that gay men and lesbians may not be arbitrarily singled out for disfavored legal status seemed to undermine the Bowers ruling that belief in the immorality of homosexuality was a sufficient basis for sodomy laws. Moreover, since Bowers, there has been a dramatic change in public laws and attitudes toward gay men and lesbians. At the time of the ruling in Bowers, twenty-four states and the District of Columbia had sodomy laws. Since then, ten states and the District of Columbia have either repealed the laws legislatively or state courts have ruled them impermissible under state constitutions. Indeed, the Georgia Supreme Court struck down, under the state constitution, the very law upheld in Bowers. In so doing it stated: "We cannot think of any other activity that reasonable persons would rank as more private and more deserving of protection from governmental interference than unforced, private, adult sexual activity."²⁴⁷ Fourteen states and numerous municipalities also have laws protecting gays and lesbians from employment discrimination; federal civilian employees are protected from discrimination on the basis of sexual orientation by an Executive Order.²⁴⁸ Many state and local government and private employers have also recognized committed homosexual relationships by enacting domestic partner laws and offering expanded employee benefits for same-sex couples.

If the U.S. Supreme Court were to rule in Lawrence v. Texas that laws uniquely penalizing homosexual sex were an unconstitutional infringement on expectations of privacy or violated equal protection it would undoubtedly give new life to constitutional challenges to "don't ask, don't tell." But the likelihood of those challenges succeeding might nonetheless remain slim. Even under a heightened standard of scrutiny, the courts might still conclude that the goal of protecting unit cohesion in the military constituted a compelling state interest, that homosexual conduct threatened such cohesion, and that "don't ask, don't tell" was a narrowly tailored measure to protect cohesion. As long as courts accept the military's view that homosexual conduct is the problem, not heterosexual prejudice, they may continue to uphold inequities for gay and lesbian servicemembers that violate their human rights.

²⁰¹ International Covenant on Civil and Political Rights (ICCPR), G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976, art. 17.

²⁰² Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (Kehl am Rhein, Germany: N.P. Engel, 1993), p. 294.

²⁰³ Nicholas Toonen v. Australia (1994), U.N. Doc. CCPR/c/50/D/488/1992.

²⁰⁴ The Committee also found that criminalization of homosexual sex was not a reasonable or proportionate means to prevent the spread of HIV/AIDS.

²⁰⁵ Dudgeon v. The United Kingdom, 4 Eur. Ct. H.R. 149, para. 41, September 23, 1981; U.N. Human Rights Committee, Toonen v. Australia (1994); Norris v. Ireland, 13 Eur. H.R. Rep. 186, (1986); Modinos v. Cyprus, 16 Eur. H.R. Rep. 485 (1993).

²⁰⁶ Dudgeon v. The United Kingdom, 4 Eur. Ct. H.R. 149, para. 60, September 23, 1981.

²⁰⁷ Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov. 4, 1950, 213 U.N.T.S. 221 (entered into force Sept. 3, 1953), art. 8(2).

²⁰⁸ Dudgeon v. The United Kingdom, 4 Eur. Ct. H.R. 149, para. 60-61, September 23, 1981.

²⁰⁹ Ibid.

²¹⁰ Norris v. Ireland, 13 Eur. H.R. Rep. 186, (1986); Modinos v. Cyprus, 16 Eur. H.R. Rep. 485 (1993), A.D.T. v. The United Kingdom, Eur. Ct. H.R., Application no. 35765/97 (July 31, 2000).

²¹¹ Lustig-Prean and Beckett v. The United Kingdom, 29 Eur. Ct. H.R. 548, (Applications nos. 31417/96 and 32377/96) judgment, Strasbourg, France, September 27, 1999.

²¹²  Ibid., para. 80.

²¹³ Ibid., para. 80.

²¹⁴ Ibid., para. 87.

²¹⁵ Ibid., para. 89-90.

²¹⁶ Ibid., para. 95.

²¹⁷ Ibid., para. 96.

²¹⁸ United Nations, Office of the High Commissioner for Human Rights, Human Rights Committee, General Comment 18: Nondiscrimination, para. 12, 37th sess., 1989, in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1, p. 26 (1994).

²¹⁹ The Human Rights Committee understands Article 26 to prohibit both discriminatory intent and discriminatory effect. It has concluded that "the term `discrimination' as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms." Ibid., para. 7 (emphasis added). See also Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), art. 1, ("effect or purpose"); International Convention on the Elimination of All Forms of Racial Discrimination, art. 1(1) ("purpose or effect").

²²⁰ Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (Arlington: N.P. Engel, 1993), p. 45.

²²¹ United Nations, Office of the High Commissioner for Human Rights, Human Rights Committee, Views of the Human Rights Committee under art. 5, para. 4, of the Optional Protocol to the International Covenant on Civil and Political Rights concerning Communication No. 488/1992: Australia, para. 8.7, 50th sess., U.N. Doc. CCPR/C/50/D/488/1992 (April 4, 1994).

²²² Human Rights Committee, General Comment 18, Nondiscrimination, para. 13, 37th sess., (1989).

²²³ Dudgeon v. The United Kingdom, 4 Eur. Ct. H.R. 149, para. 69, September 23, 1981. The court stated:

Once it has been held that the restriction on the applicant's right to respect for his private sexual life gives rise to a breach of Article 8 ... by reason of its breadth and absolute character ... there is no useful legal purpose to be served in determining whether he has in addition suffered discrimination as compared with other persons who are subject to lesser limitations on the same right.

²²⁴ Lustig-Prean and Beckett v. The United Kingdom, 29 Eur. Ct. H.R. 548, para. 108, September 27, 1999.

²²⁵ In ratifying the ICCPR, the U.S. made no reservations or understandings purporting to limit its obligations under or the scope of Article 17. The U.S. made a general declaration that none of the substantive articles of the ICCPR, including Article 17, are self-executing under U.S. law.

²²⁶ Bowers v. Hardwick, 478 U.S. 186 (June 30, 1986).

²²⁷ Justice Blackmun pointed out that the sodomy statute "denies individuals the right to decide for themselves whether to engage in particular forms of private, consensual sexual activity." Bowers v. Hardwick, 478 U.S. 186, 190 (1986).

²²⁸ Bowers v. Hardwick, 478 U.S. 186, 196 (1986).

²²⁹ Able v. United States of America, 155 F.3d 628 (2^nd Cir. 1998); Thomasson v. Perry, 80 F.3d 915 (4^th Cir. 1996) (en banc); Selland v. Perry, 100 F.3d 950 (4^th Cir. 1996); Thorne v. Perry 80 F.3d 915 (4^th Cir. 1996); Richenberg v. Perry, 73 F. 3d 172 (8^th Cir. 1995); Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997), and Holmes/Watson v. California Army Nat'l Guard, 124 F.3d 1126, 1133 (9^th Cir. 1997) two separate cases consolidated on appeal.

²³⁰ U.S. states are bound by the equal protection clause of the Fourteenth Amendment, which provides that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Constitution, Amendment XIV, § 1. The federal courts have interpreted the due process clause of the Fifth Amendment to require the federal government to observe substantially similar norms of equal treatment. See, for example, Bolling v. Sharpe, 347 U.S. 497 (1954) (invalidating racial segregation in District of Columbia public schools under the due process clause of the Fifth Amendment). The due process clause provides that "[n]o person shall be deprived of life, liberty, or property, without due process of law." U.S. Constitution, Amendment V.

²³¹ Romer v. Evans, 517 U.S. 620, 631 (1996) (citing Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 271-72 (1979); F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)).

²³² In addition, U.S. courts accord some, but not all, intimate personal choices as fundamental rights, recognizing a "private realm of family life which the state cannot enter" without a compelling justification. Prince v. Massachusetts, 321 U.S. 158, 166 (1944). For example, states may not enact laws that interfere with personal decisions to marry a person of the opposite sex, to have children, or not to have children. See Loving v. Virginia, 388 U.S. 1, 12 (1967) (invalidating law against racial intermarriage); Skinner v. Oklahoma, 316 U.S. 535 (1942) (invalidating state law providing for sterilization of certain repeat felons); Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974); Griswold v. Connecticut, 381 U.S. 479 (1965) (invalidating state statute criminalizing use of contraceptives); Roe v. Wade, 410 U.S. 113 (1973) (holding that only a compelling state interest can justify state regulation of a decision to end a pregnancy). But in Bowers v. Hardwick, 478 U.S. 186 (1986), the U.S. Supreme Court upheld Georgia's sodomy statute, holding that the U.S. Constitution does not protect consensual sexual relations between members of the same sex in the privacy of their home. (The Georgia Supreme Court overturned the state's sodomy law in 1998, finding that it violated the state constitution's guarantee of the right to privacy. See Powell v. State, 510 S.E.2d 18, 26 (Ga. 1998)).

²³³ See, e.g., McLaughlin v. Florida, 379 U.S. 184, 191-92 (1964) (race); Oyama v. California, 332 U.S. 633 (1948) (ancestry); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 136 (1994) (sex); Lalli v. Lalli, 439 U.S. 259, 265 (1978) (illegitimacy).

²³⁴ Rational basis review is a deferential standard under which there is no constitutional violation if "there is any reasonably conceivable state of facts" that would provide a rational basis for the government's conduct. FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993).

²³⁵ The amendment read:

No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self executing.

Colorado Constitution, art. II, § 30b (adopted in a 1992 statewide referendum; invalidated by Romer, 517 U.S. at 635).

²³⁶ See, for example, City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) (invalidating a zoning ordinance that created barriers to opening a group home for the mentally retarded); U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973) (invalidating federal legislation restricting food stamp eligibility to households in which all members were related after finding that the restriction was intended to prevent "hippies" and "hippie communes" from participating in the program); Plyler v. Doe, 457 U.S. 202 (1982) (invalidating Texas law denying a free public education to the children of undocumented immigrants).

²³⁷ Romer, 517 U.S. at 635.

²³⁸ For example, one court noted:

... while we are not free to disregard the Constitution in the military context ... we owe great deference to Congress in military matters. Although deference does not equate to abdication of our constitutional role, in considering whether there is substance to the government's justification for its action, courts are ill-suited to second-guess military judgments that bear upon military capability or readiness.

Able v. United States, 155 F.3d 628, 634 (2d Cir. 1998).

²³⁹ Thomasson v. Perry, 80 F.3d. at 921.

²⁴⁰ In Phillips v. Perry, 106 F.3d 1420, 1435-36 (9^th Cir. 1997), the dissent pointed out that the only way gay servicemembers would disrupt unit cohesion and discipline is through other servicemember's negative reaction to homosexuality. According to the dissent, "... accommodating the negative attitudes of those service members who oppose having gay men and lesbians in their ranks ... are not legitimate government interests."

²⁴¹ Thomasson, 80 F. 3d. at 951 (Hall, J. dissenting). Thomasson, who was discharged once he disclosed that he was gay, unsuccessfully challenged the policy on equal protection and due process grounds.

²⁴² Thomasson, 80 F. 3d. at 930.

²⁴³ Holmes v. California Army National Guard, 124 F. 3d. 1126, at 1135.

²⁴⁴ Holmes, 124 F. 3d. at 1139

²⁴⁵ Able v. United States of America, 880 F. Supp. 968, 973-975 (E.D.N.Y. 1995), rev'd, 155 F.3d 628 (2d Cir. 1998).

²⁴⁶ Lawrence v. Texas, writ of certiorari granted, 2002 U.S. Lexis 8680 (December 2, 2002). In 1998, sheriff's officers entered a private home and intruded on petitioners while they were having sex. Petitioners were convicted of violating a Texas statute that criminalizes deviant sexual intercourse, including anal or oral sex, with another person of the same sex. The petitioners appealed, claiming the statute violated constitutional rights to privacy and due process and their right to equal protection. A panel of the Texas Court of Appeals overturned their convictions under the state's equal rights amendment, holding that the statute discriminates on the basis of sex. In a rehearing en banc, the Court of Appeals reinstated the convictions, rejecting petitioners federal privacy claim, citing Bowers v. Hardwick, and holding that the statute survived a rational basis review because it furthered the legitimate state interests of "preserving public morals."

²⁴⁷ Powell v. Georgia, 510 S.E. 2d 18, 24 (Ga. 1994).

²⁴⁸ In 1998, President Clinton issued an executive order to prohibit anti-gay employment discrimination against federal workers. The order expanded the federal government's equal opportunity policy by prohibiting employment discrimination based on sexual orientation by amending Executive Order 11478 (signed August 8, 1969), which banned discrimination based on race, color, religion, sex, national origin, handicap and age. Within the Department of Defense, the ban on anti-gay discrimination extends only to civilian employees. President William J. Clinton, Executive Order No. 13807, March 28, 1998.