The equal protection violation before the court is the fact that the Texas Sodomy law punishes only homosexual sodomy.
10 Other States (Including My State of North Carolina) punish both Homosexual and Heterosexual Sodomy. This issue isn't even before the Court.
So tell me, What is the equal protection violation in the laws that punish Both Heterosexual and Homosexual Sodomy?
You're focusing only on the first question of the case. There are three questions presented to the Court:
QUESTIONS PRESENTED
1. Whether Petitioners' criminal convictions under the Texas
"Homosexual Conduct" law - which criminalizes sexual
intimacy by same-sex couples, but not identical behavior
by different-sex couples - violate the Fourteenth
Amendment guarantee of equal protection of the laws?
2. Whether Petitioners' criminal convictions for adult
consensual sexual intimacy in the home violate their vital
interests in liberty and privacy protected by the Due
Process Clause of the Fourteenth Amendment?
3. Whether Bowers v. Hardwick, 478 U.S. 186 (1986), should
be overruled?
Note question #2. If answered in the affirmative, your North Carolina statute will be declared unconstitutional.
If you would like to read the briefs, they are available her.
http://supreme.lp.findlaw.com/supreme_court/docket/2002/march.html#02-102 Well, it's interesting they decided to go for due process and not equal protection under the theory the law could not possibly be applied except sporadically and unevenly, but that was my point: not sex discrimination, but lack of equal protection because it is inherently capricious in application.