But again Limon was not about protecting homosexual rape of minors. It was about the differential sentencing requirements for homo and hetero minor rape. It may merely be a directive for the court to review without relying on the now overruled Bowers case. Whether, sans Bowers, Kansas still finds a rational basis for the distinction, then Kennnedy will trundle out Romer again, and find that even though Limon was not about a process impediment, it still is animated by animus towards a particular group, and thus lacks a rational basis, remains to be seen. I doubt that will happen.
If however, it does happen, then gays will become a unique class, ie, the first class protected by rational basis rather than on a suspect class basis. At that juncture, we will really be in the soup, because that means rational basis is now a much stricter standard, almost the functional equivalent of suspect class, which means that SCOTUS can pass any law based on its cultural sensibilites.
Actually, in my view Romer had some of the most incisive language I've read in a Supreme Court opinion..
Frum furnishes the most plausible explanation I have yet seen of why Lawrence could have led to the result in Limon.
Frum's interpretation is wrong - which seems to have become quite a routine trend of late. What Romer iterates is that: even in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained. The object to be attained cannot be the mere expression of animus toward gays as a class, because that is not a rational objective.
The court in these decisions has been very careful not to talk about suspect classes and fundamental rights, and it has -- very unconvincingly -- pretended it was using rational-basis review.
The Court clearly applied rational basis review in the case of Romer, and its subsequent decisions in Dale v Boy Scouts and Equality Foundation v Cincinnati make that transparently evident (as you're well-aware). In the Lawrence ruling the best one might argue is that the Court stopped just shy of explicitly declaring a fundamental right, probably because it didn't need to. The fundamental right to privacy has already been declared in Griswold and in Eisenstadt, which the Court simply stated cannot be withheld from gays (without a rational basis). The mere expression of animus toward gays is not a rational basis.
But it sure looks to me as though it has in effect created both a protected (I'm not using "suspect" just because it is a technical term) class and a de facto fundamental right.