EDUCATIONAL RESOURCE: Gay Rights in the Supreme Court of the United States

Hello Progressive PRIDE!

Despite what you will often hear from the anti-gay pundits that frequent the internet, Gay and Lesbian citizens really do have rights, and the Supreme Court of the United States is has a surprisingly good track record when it comes to defending those rights. Not every case has gone our way, of course, but it is surprising to look back and see how well we have fared, and how far we have come from the total systematic oppression of gay people that existed in this coutry just sixty years ago.

Below is an abbreviated list of the Supreme Court decisions that I feel are the most significant to the rights of Gay and Lesbian people. This is by no means a comprehensive guide. There are a LOT of gay-relevant decision in the Courts, and the decisions in the Lower Courts are quite literally all over the map. But, the general trend in the High Court has in my humble opinion been quite positive.

ONE, INC. V. OLESEN, 355 U.S. 371 (1958)

This case is most significant in a historical context because it represents the first time that the SCOTUS ruled explicitly on the subject of homosexuality. In one of the shortest decisions on record, the Supreme Court struck down a policy that permitted the Postmaster of Los Angeles refuse to allow a gay positive publication to be sent through the mail on the grounds that a "homosexual publication" was automatically considered "obscene." The decision was quick and decisive, and the Court refused to even entertain oral arguments in the case.

BOWERS V. HARDWICK, 478 U.S. 186 (1986)

This is probably the most well known case (with the possible exception of the Lawrence decision...see below) relating to Gay Rights. In this infamous decsion, The Court ruled that citizens did not have "a fundamental right to engage in homosexual sodomy," and upholding laws that treated consensual intimate acts between two adults in private as a criminal offense. Fortunately, this case was struck down in the landmark decision of Lawrence v. Texas (2003). It is interesting to note that the "swing vote" in Bowers, Justice Lewis Powell, publically regretted his decision to side with the majority after he retired from the Court, suggesting that the decsion had been wrongly rendered.

ROMER V. EVANS, 517 U.S. 620 (1996)

In my personal opinion, this opinion is the most significant case of the bunch. In Romer, the SCOTUS rules that a State could not make a law (or ammend its Constitution) to target homosexual citizens for discriminatory treatment on the basis of their sexual orientation. Basically, the State of Colorado amended its Constitution to prevent and legislative, executive or judical actions that would protect homosexual citizens from discrimination on the basis of their sexual orientation. The decision was something of a surprise. The general feeling in the community at the time was that the amendment would probably be allowed to stand, and the 6-3 decision in our favor was certainly more than was expected.

To me, consistency with Romer appears to speak directly to the various Defense of Marriage Acts and Amendments that are currently popping up around the country. For the most part, the DOMA's have carefully avoided the frankly discriminatory language that was found in Colorado's Amendment 2, but the real "judicial intent" (a term that is quite common in Civil Rights Law) of these acts is clearly to do exactly what the decision in Romer prohibited. These laws and amendments are intended to single out gay citizens and to proactively exclude them from a basic civil right, the freedom the marry.

ONCALE V. SUNDOWNER OFFSHORE SERVICES, 523 U.S. 75 (1998)

This quietly decided case extended Title VII's protection from sex discrimination in the workplace (more commonly referred to as "sexual harassment") to situations where the discrimination occurred between members of the same sex. Some conservatives seem to feel that this was an anti-gay victory, but I disagree. The Lower Courts have been somewhat inconsistent in their decisions, but there seems to be a growing acceptance that harassment of a gay employee because of his sexual orientation is an implicit component in the ruling.

BOY SCOUTS OF AMERICA et al. v. DALE, 530 U.S. 640 (2000)

In this case, the SCOTUS ruled that private organizations like the Boy Scouts have a right to exclude homosexual members and employees from their association. Many gay people viewed this case as a "defeat" for LGBT rights, but that is not an opinion that I share. Freedom of Association is a bedrock principle of our Constitution, and people do have a right to associate (or not) with whomever they please and for whatever reasons they want. In response to this ruling, a number of jurisdictions and organizations (for example, the States of California, Connecticut and Illinois, the Cities of San Diego, Tempe, Chicago, Berkley, Santa Barbara and Philadelphia, the United Way, the Unitarian Universalist Association, Chase Manhattan Bank, Levi Strauss, Fleet Bank, CVS/pharmacy, and the Pew Charitable Trusts) have responded by noting that "Freedom of Association" works both ways, and have eliminated their public and private support for the organization.

LAWRENCE V. TEXAS, 539 U.S. 558 (2003)

Probably the second most important ruling in this list, the Lawrence ruling overturned Bowers and established the precedent that intimate consensual sexual contact was indeed a fundamental form liberty protected by the Fourteenth Amendment. This was another example of a solid 6-3 ruling in favor of our equality. The most significant impact of this case is the fact that a LOT of anti-gay legislation is premised on the idea that sodomy is a criminal act, and now that this premise has been dismantled, those acts now stand on very shaky legal ground.

GOODRIDGE V. DEPT. OF PUBLIC HEALTH, 798 N.E.2d 941 (Mass. 2003)

Now, this isn't actually a Supreme Court decision. Goodridge was the decision of the Supreme Court of the State of Massachusetts that paved the way for full marriage equality for same-sex couples in that State. It is however an extremely important case that was refused without comment on appeal to the SCOTUS. The High Court made a very savvy political move in the way that they handled this case. Because they refused to comment on their rejection of the appeal, we really don't know why they upheld the case. Same-sex advocates often use the refusal to defend the arguments in given in the decision that cite the Fourteenth Amendment of the U.S. Constitution as a justification, while same-sex opponents usually argue that the SCOTUS only intended to uphold the right of the States to make their own decision regarding marriage in their own jurisdiction. The truth is that we really don't know for sure, and the Court dodged a bullet by permitting the pro-gay ruling to stand, but refusing to actually cement that ruling in precedent by clearly stating their reasons for denying the appeal.

There are two other cases that are of particular interest in my opinion, even though they do not directly address the issue of homosexuality.

WISCONSIN V. MITCHELLl, 508 U.S. 476 (1993)

This case is important because it addresses an issue that is prevalent in our community...Hate Crimes. The SCOTUS ruled that the First Amendment could not be used as a valid argument against statutes that apply enhanced sentencing guidelines to crimes that are motivated by group bias. Now, to be honest, I'm not a fan of hate crime legislation. The whole idea of prosecuting someone for what they were thinking when they commited a crime seems just a little too "1984" for my tastes. But, it is a standing precedent.

LOVING V. VIRGINIA, 388 U. S. 1 (1967)

The Loving decision was the case that struck down all of our country's remaining anti-miscegenation laws, and established enequivocably that the "freedom to marry" is a "vital personal right" of citizens. The case is particularly poignant, due to the remarkable similarity of the background of the case to the current fight for same-sex marriage. Many conservatives would like to deny the relevance of this case, and some Lower Courts have done so (such as in Anderson v. King County) but the Supreme Court itself has made at least an indirect reference to the similarity (in the Lawrence decision), and the Massachussets Supreme Court (in Goodridge) relied heavily on the precedent in rendering its decision, which in my opinion directly challenges such assertions.

On a closing note, we should remember that just because several cases have gone our way doesn't mean that we have heard the last on these issues. Like all branches of the Government, the Supreme Court of the United States is first and foremost a political body (even though they shouldn't be). Lawrence v. Texas is a perfect example of the way that a standing Supreme Court precedent can be struck down, as the make up of the Court changes. The recent Bush appointments to the Court were chosen at least in part due to their conservative beliefs regarding Gay and Lesbian Issues. What does that mean for us? We won't really know until a major case makes its way before the Roberts / Alito Court. Chief Justice John Roberts is certainly a social conservative, but his opinons are not nearly extreme as those of his predecessor, Former Chief Justice William Rehnquist. Samuel Alito, however, is an extreme social conservative, and represents a problematic figure replacing Sandra Day O'Conner as a potential swing vote in 5-4 decisions.

But, I remain hopeful. I really and truly believe that the full recognition of the fundamental rights of Gay and Lesbian citizens is inevitable. If American History has taught us anything, it is that free people living in a free society will not for long tolerate discrimination in their governments. There will always be those who oppose the idea that Gay and Lesbian citizens are first and foremost citizens who deserve access to the same rights and privileges as everyone else. But, if the current trends in public opinion continue, it is just a matter of time before homophobia is reduced to the same level of social unacceptability as racism, sexism, anti-semitism, etc.

TTFN,
percivale

"We must make it clear that a platform of 'I hate gay men and women' is not a way to become president of the United States." ~ Former U.S. President Jimmy Carter in The Los Angeles Times.