The Pathway to Victory: A review of Supreme Court LGBT Cases

Last month the United States Supreme Court handed down its most sweeping LGBT rights case to date. In striking down the Defense of Marriage Act’s (DOMA) definitions of marriage and spouse, the Court found that DOMA instructs same-sex couples “that their marriage is less worthy than the marriages of others,” and held that these restrictions on the federal recognition of marriage violate the U.S. Constitution. This ruling highlights how the Court’s treatment of LGBT people has monumentally shifted in just 27 years from when it first held that states could criminalize sodomy. Inspired by the ruling in United States v. Windsor, we decided to take a look back at the five cases that created the historical path that led the Court to where we are today.

Bowers v. Hardwick

The first major gay rights case to reach the Supreme Court was Bowers v. Hardwick in 1986. Michael Hardwick had been charged with violating a Georgia statute that criminalized sodomy (defined by the statute to include both oral and anal sex, regardless of the sexual orientation of the parties involved) after he was caught having sex with another man. The penalty for a single act was incarceration for up to twenty years.

Hardwick challenged the law as a violation of privacy and his fundamental rights under the Fourteenth Amendment. The Court held that Georgia’s statute was constitutional, writing that “there is no such thing as a fundamental right to commit homosexual sodomy.” Laws against “homosexual conduct” have “ancient roots,” the Court reasoned, and thus could not be “implicit in the concept of…liberty” or “deeply rooted in this Nation’s history and tradition.” The Justices openly stated that there was “[n]o connection between family [and] marriage…on the one hand and homosexual activity on the other.” They did disclaim that they would not pass judgment on whether such laws were “wise or desirable” and one justice argued that he thought the extreme prison sentence could violate the Eighth Amendment’s provision against cruel and unusual punishment. Nonetheless, the electorate’s belief that homosexual activity is immoral was considered sufficient justification to pass Constitutional muster.

The dissenting Justices, which included former civil rights activist Thurgood Marshall, argued that the Court had an “obsessive focus on homosexual activity,” given that the Georgia law punished all persons for sodomy, regardless of their gender. Instead, the justices focused in on “the right to be left alone.” For the dissenters, this case was about the freedom to “independently define one’s identity…and the fact that individuals define themselves in a significant way through their intimate sexual relationships with others.”

It shocks some of us to read the archaic language that was culturally acceptable to describe LGB persons. For instance, Hardwick was repeatedly termed a “practicing homosexual,” whatever that is. Until 1961, every state outlawed sodomy and at the time of Bowers, 24 states and the District of Columbia continued to impose criminal penalties for sodomy performed in private between consenting adults. The case presented other contentious issues. The legality of how the arresting officer entered Hardwick’s home and his reasons for being there are suspect, which is why Hardwick’s criminal charges were thrown out by the district attorney. The decision was closely split 5-4, and Justice Powell later stated that he erred in joining the majority, but at the time he did not realize the impact the case would have.

Romer v. Evans

It wasn’t until a decade later that LGB advocates saw their first victory at the Supreme Court in Romer v. Evans. The Colorado cities of Aspen, Boulder and Denver all passed ordinances that banned sexual orientation discrimination in many transactions and activities, including housing, employment and public accommodations. In response, anti-LGBT groups brought and successfully passed a statewide referendum called Amendment 2 repealing these ordinances and prohibiting all levels of government from banning discrimination based on their sexual orientation.

In the Supreme Court, Colorado argued that all Amendment 2 did was prevent gays and lesbians from getting “special rights.” Writing for the majority, Justice Kennedy disagreed and held that “[w]e find nothing special in the protections [withheld]. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.”

The Court further explained that this state constitutional amendment bore no purpose other than to burden LGB persons. The U.S. Constitution does not permit “laws of this sort…[they] raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. If…‘equal protection of the laws’ means anything, it must at the very least mean that a bare…desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”

Romer marked a change in the tide for the LGBT movement. The decision enabled cities and counties to pass sexual orientation nondiscrimination ordinances without fear that a statewide initiative would later take away these protections. It laid the constitutional foundations for why laws that are rooted in animus were constitutionally suspect, which the Court would later cite as it struck down Section 3 of DOMA. Since Romer, we have seen significant movement at the state and local level in terms of passing LGBT-inclusive non-discrimination laws. Today, over 45% of the U.S. population lives in a jurisdiction that has explicitly transgender-inclusive non-discrimination laws on the books. These laws have a huge impact on the daily lives of LGBT people and their families – they open up access to employment, housing, health care, and access to public facilities free from discrimination on the basis of sexual orientation or gender identity.

Lawrence v. Texas

The next major gay rights case was Lawrence v. Texas in 2003. This involved a Texas anti-sodomy statute, although unlike the law in Georgia, this one only banned sex between members of the same sex (statutorily defined as “deviate sexual intercourse”). Police entered John Lawrence’s apartment where they witnessed him engaging in a sexual act with another man. Both men were arrested, charged, and convicted. As in Romer, Justice Kennedy, writing for the majority, struck down the law and explicitly overruled Bowers. He wrote, “When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”

The majority in Lawrence struck down the law based on privacy protections in the Constitution. However, Justice Sandra Day O’Connor concurred in the judgment but separately argued that the Texas law should be struck down as a violation of the Equal Protection Clause of the Constitution as the law only applied to same-sex sodomy because it targeted the LGB community out of animus.

Lawrence invalidated anti-sodomy laws across the country, making “gay sex” legal nationwide for the first time. Perhaps more importantly (because these laws were rarely enforced) the decision granted legal legitimacy to same-sex couples and provided guidance for lower courts grappling with these issues. It was revealed years later that John Lawrence was not actually having sex on the night that he was arrested, but that officers had arrested him because other men and “gay paraphernalia” were present in his apartment. Civil rights attorneys saw their arrest as the perfect opportunity to challenge the antiquated Texas sodomy law.

It is incredible to see what a difference just ten years makes. In ten years, we came from a society that bans sexual relations between members of the same sex before the Lawrence decision to a society whose federal government recognizes marriages between same-sex couples, and that same-sex couples can get married in one quarter of the states in the nation.

United States v. Windsor

Edith Windsor and Thea Spyer were together for nearly 40 years and had married in Canada, which was recognized under New York State law. But because of the so-called “Defense of Marriage Act,” they were barred from receiving federal benefits due to the the definition of marriage and spouse under DOMA that limits marriage recognition to a union between one man and one woman. Therefore, when Windsor inherited her wife’s estate she did not qualify for the federal estate tax exemption for surviving spouses. She paid the $363,053 tax bill and then sued the federal government for a tax refund on the grounds that DOMA violates constitutional principles of due process and equal protection.

Justice Kennedy, again writing for the majority (see how important Kennedy is to LGBT rights cases?), explained in his opinion that Congress’s “unusual deviation” into domestic relations, an area of law almost exclusively governed by states, was strong evidence that DOMA was motivated by an improper animus or purpose. To buttress this point, Kennedy referenced a Congressional Report concluding that DOMA expresses “both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.”

The majority opinion discusses in great detail the consequences of having “DOMA write inequality into the entire United States Code.” By creating second-tier marriages that are “unworthy of federal recognition,” same-sex couples have diminished stability and predictability in their lives and are financially harmed in numerous ways (social security, taxes, and veterans’ benefits, to name a few). DOMA leaves their children humiliated as they struggle “to understand the integrity and closeness of their own family and its concord with other families in their communities and in their daily lives.” Kennedy also points out that DOMA allows same-sex couples to evade certain responsibilities of marriage, such as reporting a spouse’s income for federal financial aid eligibility or preventing the spouses of Senators from accepting high-value gifts. Ultimately, because the Fifth Amendment’s guarantee of due process “withdraws from Government the power to degrade or demean in the way this law does,” DOMA’s definitions of marriage and spouse were struck down.

Three separate dissents were written. In his opinion, Chief Justice Roberts expressed skepticism that DOMA was motivated by a desire to harm same-sex couples. Without more convincing evidence that the Act furthered no legitimate government interest he “would not tar the political branches with the brush of bigotry.” Roberts also underscored how the majority’s view did not decide whether state governments can exclude same-sex couples from the institution of marriage. Justice Scalia’s dissent took issue with the majority’s characterization of DOMA supporters as “unhinged members of a wild-eyed lynch mob” and “enemies of the human race.” He argues that DOMA prudentially (and mundanely, he notes) creates stability by establishing a single definition of marriage for the federal government to uniformly apply. Similarly to Roberts’ opinion, Scalia warns that the majority’s reasoning will inevitably be used to find state laws that deny same-sex couples marital status unconstitutional. On this point, we certainly hope Scalia is correct.

The significance of the Windsor decision cannot be overstated. For same-sex couples residing in a state that recognizes their marriage, the full spectrum of federal benefits will now be available to them. Moreover, certain federal benefits will potentially be accessible to same-sex couples who travel to another state to get married. And, perhaps most importantly, LGB individuals will no longer be robbed of the personhood and dignity that comes with a national government’s refusal to recognize their relationships.

Hollingsworth v. Perry

Released on the same day as the Windsor opinion, the Hollingsworth v. Perry decision essentially marked the end of Proposition 8’s five-year journey. In 2008, the California Supreme Court ruled same-sex couples could not be excluded from marriage. Later that year, California voters approved the constitutional amendment Proposition 8, which limited marriage to being between a man and a woman. The ballot initiative was thrown out in federal court, at which point California state officials stopped defending the law. Supporters of Proposition 8 then intervened and appealed the decision all the way to the U.S. Supreme Court.

The Court decided Hollingsworth purely on procedural technicalities. The majority wrote that Proposition 8 proponents lacked standing, a constitutional requirement, to defend the law in federal court. This meant that their appeals were invalid and that Proposition 8 was invalid based on the federal district court’s decision.

Off the heels of this term’s judicial victories, LGBT legal advocates continue to speculate what’s next to come down the road. Some believe that Section 2 of DOMA, which allows states to ignore marriages granted in other states, will be the next challenge to work its way up to the Supreme Court. Others think the next big case will come from a same-sex couple challenging a state law limiting marriage to different-sex couples. One such challenge has already been decided in federal court since the Windsor ruling. Either way, the trajectory that the Court has taken over the last thirty years suggests that more favorable LGBT rights decisions are to come.