However, a troubling thing here is the reasoning which invalidates individual rights due to membership in a particular group. It should make everyone a little nervous when individual gays are judged due to rates of distressing problems among larger groups of gays. Even on a practical level, such stereotyping can become the basis for predjudice and discrimination.

It seems to me that broad brushing negative trends from “gay behavior” in general to all gays IS the modus operandi of many groups that oppose any rights for gays. There are decidedly different levels (including not at all) among those that oppose gays in the quest for their equality but the comment seems really spot on for many in the “anti-gay industry”.

The SCOTUS, in Romer v. Evans, began the constitutional recognition of gay people as a class – ironically because Amendment 2 created a class of people specifically to deny them legal access (the Florida ban is similar).

Scalia and Thomas dissented, arguing behavior and referencing Bowers.

Lawrence v. Texas (which overturned Bowers) further confirmed the concept of gay people as a class. Although it was not the argument of the majority (that was the right to privacy) it was the argument of O’Connor’s consent. She supported the overturning of sodomy laws because they were directed at a group rather than an act.

Scalia angrily dissented. He scorned O’Connor in particular because her argument could be interpreted to apply to any legislation that distinguished between gay people and straight people, even extending to marriage. Scalia made it quite clear (as he has done in subsequent speeches) that he not only disagreed with the logic but that he personally favored anti-gay legislation (he’s not going to find that gay people have any rights whatsoever, at any time, on any case).

Thomas dissented but in a much less strident way, noting that sodomy laws are silly and that if he were a legislator he would vote to remove them, but that he sees no general right to privacy in the constitution.

Chief Justice John Roberts, while at Hogan & Hartson, assisted in the case against Amendment 2 and so is likely to be receptive to arguments against Florida’s adoption ban, as the laws have some similarities.

I suspect that Sotomayor and Kagen may have a perspective that sees laws passed which are designed specifically to place unequal burden on gay people through the perspective of class as well.

I cannot predict how the court would come down on this law in particular, but it seems likely to me that there is an increasing trend on the court to see gay people as a class rather than just a behavior.