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=== Gay rights and homosexuality ===
Kennedy's concept of liberty has included protections for sexual orientation. While Kennedy was an appeals-court judge, he wrote a decision in ''Beller v. Middendorf'' (9th Cir. 1980) that noted that some homosexual behavior may be constitutionally protected —– yet upheld the military's policy of discharging service members on the basis of homosexuality.<ref>[[Michael Klarman]], [http://cdn.harvardlawreview.org/wp-content/uploads/pdfs/vol127_klarman.pdf ''The Supreme Court, 2012 Term – Comment: Windsor and Brown: Marriage Equality and Racial Equality'', 127 ''Harvard Law Review'' 127, 138 (2013)] {{Webarchive|url=https://web.archive.org/web/20150325210536/http://cdn.harvardlawreview.org/wp-content/uploads/pdfs/vol127_klarman.pdf |date=March 25, 2015 }} citing [https://scholar.google.com/scholar_case?case=8185195466571647567 ''Beller v. Middendorf'', 632 F.2d 788 (9th Cir. 1980)] {{Webarchive|url=https://web.archive.org/web/20211108153036/https://scholar.google.com/scholar_case?case=8185195466571647567 |date=November 8, 2021 }} (Finding the Navy could discharge sailors at [[Naval Air Station Alameda]] for engaging in homosexual acts).</ref> He later wrote the Supreme Court's opinion in ''[[Romer v. Evans]]'' (1996), invalidating a provision in the [[Colorado Constitution]] excluding homosexuals from any state or local anti-discrimination protections. He wrote the Court's opinion in ''[[Lawrence v. Texas]]'' (2003), which invalidated criminal laws against homosexual [[sodomy]] on the basis of the [[Due Process Clause]] of the [[United States Constitution]], overturning the Court's previous ruling in ''[[Bowers v. Hardwick]]'' (1986). In both cases, he sided with the more liberal members of the Court. He wrote that the Court had misread the historical record regarding laws criminalizing homosexual relations in ''Bowers'', stating that further research showed that American anti-sodomy laws had historically been directed at "nonprocreative sexual activity more generally,", rather than specifically at homosexual acts. Combined with the fact that such laws had often gone unenforced, the Court saw this as constituting a tradition of avoiding interference with private sexual activity between consenting adults. He also said that the reasoning behind ''Bowers'' was not widely accepted in American law (pointing, for example, to the Model Penal Code's recommendations starting in 1955) and that it had been rejected by most other developed Western countries (as in the [[Wolfenden Report]] of 1957 and a 1981 decision of the [[European Court of Human Rights]] in Case 7525/76, ''[[Dudgeon v United Kingdom]]''). As a result, Kennedy stated that there was a jurisprudential basis for thinking that "an integral part of human freedom" is allowing consenting adults to choose to privately engage in sexual activity.<ref>{{harvp|Nowak|Rotunda|2012|loc=§18.28(b)}}, quoting ''Lawrence'', 539 U.S. at 566.</ref><ref>Colucci, ''Justice Kennedy's jurisprudence'' ch. 4</ref>
In the 2000 case of ''[[Boy Scouts of America v. Dale]]'', Kennedy voted, with four other justices, to uphold the [[Boy Scouts of America]]'s organizational right to ban homosexuals from being scoutmasters.<ref name="FindLaw">{{ussc|name=Boy Scouts of America v. Dale|link=|volume=530|page=640|pin=|year=2000}}. </ref>
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