The federal government began to target homosexuals as "enemies of democracy" by labeling them a threat to national security. One of the many men and women who suffered from employment discrimination was Dr. Frank Kameny, a Harvard-educated astronomer and professor. In 1956, Kameny was terminated by the Army and barred from federal employment for several years following his alleged solicitation of sex from an undercover police officer. When Kameny unsuccessfully sued the federal government, the Supreme Court denied certiorari. The Court's failure to hear Kameny's case points to society's general fear at the time to hear, let alone debate about, potential civil or legal rights for gays.Frank Kameny, a great in the gay liberation movement, has just died. His motto was that if he and society clashed, he would examine the matter once, but if they still were in trouble, society is the one with a duty to change. Worked fairly well, up to a point. The case cited is somewhat interesting -- a look at the appellate ruling rests on neutral grounds. No reference to homosexuality per se. There is danger there, societal prejudices can be given a pass that way. But, such neutrality could eventually pay dividends, when truly honored.
-- "The Progress and Pitfalls of Lawrence v. Texas"
Lawrence v. Texas rested on substantive due process with an equal protection gloss. I am re-reading a book on the Ninth Amendment, another way to look at the question. To quote a rare case of a Supreme Court opinion (not just a concurrence or a passing mention)* that honored it: "The concerns expressed by Madison and others have thus been resolved; fundamental rights, even though not expressly guaranteed, have been recognized by the Court as indispensable to the enjoyment of rights explicitly defined." The principle has been repeatedly upheld in various ways from time to time. For instance, 1870s:
There are limitations on such power which grow out of the essential nature of all free governments. Implied reservations of individual rights, without which the social compact could not exist and which are respected by all governments entitled to the name. No court, for instance, would hesitate to declare void a statute which enacted that A. and B. who were husband and wife to each other should be so no longer, but that A. should thereafter be the husband of C., and B. the wife of D. Or which should enact that the homestead now owned by A. should no longer be his, but should henceforth be the property of B.The book [Retained by the People: The 'Silent' Ninth Amendment and the Constitutional Rights Americans Don't Know They Have] argues that we should use Supreme Court precedent establishing rights or analogous rights, connections to specific constitutional guarantees, longstanding traditions, contemporary societal consensus, decisions by American lawmakers and judges, general American traditions and international norms to give meaning to them. As with the Second Amendment, there has been various scholarly discussion, this volume more geared to general audiences. Recommended.
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* The reference is actually found in a plurality though Justice Brennan joined the famous Griswold concurrence (worked on by law clerk Stephen Breyer) and Marshall surely agreed with the sentiment too. The Casey (abortion) plurality also referenced the Ninth Amendment. Basically, the references give further backing to the use of substantive due process.
To remind:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.