David Frum's column,
JUN. 27, 2003: SODOMY IN TEXAS , explains why the effect of
Lawrence's overruling of
Bowers is to render homosexuals a constitutionally protected group, under
Romer v. Evans. Scary.
Well, Frum doesn't get it quite right. What Romer was about was the provision preventing pro gay laws to be passed in the future. It would have been OK just to strip out existing pro gay laws. Instead, there was a process impediment to the passage of future laws, and process impediments which focus on taking one side or the other on social issues are indeed suspect (although I think Romer used rational basis which was squirrely, although I am not sure), and should be. Granted, a process impediment taking the gay side would probably have been OK, so it is true that the die are loaded.
And Lawrence did not make gays a suspect class, and did not use equal protection grounds, as you know. What Kennedy did was much more fuzzy, and we shall see whether how far fuzzy wuzzie is expanded in the future. It certainly is susceptible to expansion, but it is not automatic ala the suspect class regime.
I guess Frum isn't a lawyer.