SCOTUS and LGBTQ+ Rights

 

On this day in 2003, 2013, and 2015, the four most important cases for LGBTQ+ rights in the United States were handed down by the Supreme Court of the United States.

 

On June 26, 2003, the Supreme Court issued a 6–3 decision in Lawrence v. Texas. The Court ruled that laws against consensual, adult, and non-procreative sexual activity (commonly referred to as sodomy laws) are unconstitutional. In the decision, the Court reaffirmed the concept of a "right to privacy" that earlier cases had found the U.S. Constitution provides, even though it is not explicitly stated. It based its ruling on the notions of personal autonomy to define one's own relationships and of American traditions of non-interference with private sexual decisions between consenting adults.

 

In 1998, John Geddes Lawrence Jr., an older white man, was arrested along with Tyron Garner, a younger black man, at Lawrence's apartment in Harris County, Texas. Garner's former boyfriend had called the police, claiming that there was a man with a weapon in the apartment. Sheriff's deputies said they found the men engaging in sexual intercourse. Lawrence and Garner were charged with a misdemeanor under Texas' anti-sodomy law; both pleaded no contest and received a fine. Assisted by the American civil rights organization Lambda Legal, Lawrence and Garner appealed their sentences to the Texas Courts of Appeals, which ruled in 2000 that the sodomy law was unconstitutional. Texas appealed to have the court rehear the case en banc, i.e., in front of a full panel of judges, and in 2001 it overturned its prior judgment and upheld the law. Lawrence appealed this decision to the Texas Court of Criminal Appeals, which denied his request for appeal. Lawrence then appealed to the U.S. Supreme Court, which agreed to hear his case. The Supreme Court ruled in favor of Lawrence that struck down Texas's statute. Five justices held it violated the Due Process Clause, while a sixth, Sandra Day O'Connor, held it violated the Equal Protection Clause.

 

On June 26, 2013, the Supreme Court ruled in United States v. Windsor that Section 3 of the Defense of Marriage Act (DOMA), which denied federal recognition of same-sex marriages, was a violation of the Due Process Clause of the Fifth Amendment. In the majority opinion, which was joined by four other justices, Justice Anthony Kennedy declared Section 3 of DOMA to be unconstitutional "as a deprivation of the liberty of the person protected by the Fifth Amendment."

 

Edith Windsor and Thea Spyer, a same-sex couple residing in New York, had their marriage recognized by the state of New York in 2008; Spyer died in 2009, leaving her entire estate to Windsor. Windsor sought to claim the federal estate tax exemption for surviving spouses but was barred from doing so by Section 3 of DOMA. Seeking a refund, Windsor sued the federal government in the U.S. District Court for the Southern District of New York. As the Department of Justice declined to defend the constitutionality of Section 3 of DOMA, the Bipartisan Legal Advisory Group (BLAG) intervened to defend the law. District Judge Barbara S. Jones ruled that Section 3 of DOMA was unconstitutional, and her ruling was affirmed by the U.S. Court of Appeals for the Second Circuit. The Supreme Court granted certiorari (judicial review of a lower court decision) in December 2012 and handed down its judgment on June 26, 2013.

 

On the same day, the Court also issued a separate 5–4 decision in Hollingsworth v. Perry that effectively allowed same-sex marriage in California to resume. Following the decision, the Obama administration began to extend other federal rights, privileges, and benefits to married same-sex couples. Two years later, in the case of Obergefell v. Hodges (2015), the Court struck down all state bans on same-sex marriage, ruling that marriage is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment of the Constitution. 

 

In Obergefell v. Hodges Supreme Court of the United States ruled that the fundamental right to marry is also guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment of the Constitution. The 5–4 ruling requires all fifty states, the District of Columbia, and the Insular Areas to perform and recognize the marriages of same-sex couples on the same terms and conditions as the marriages of opposite-sex couples, with all the accompanying rights and responsibilities. Prior to Obergefell, same-sex marriage had already been established by statute, court ruling, or voter initiative in thirty-six states, the District of Columbia, and Guam.

 

Between January 2012 and February 2014, plaintiffs in Michigan, Ohio, Kentucky, and Tennessee filed federal district court cases that culminated in Obergefell v. Hodges. After all district courts ruled for the plaintiffs, the rulings were appealed to the Sixth Circuit. In November 2014, following a series of appeals court rulings that year from the Fourth, Seventh, Ninth, and Tenth Circuits that state-level bans on same-sex marriage were unconstitutional, the Sixth Circuit ruled that it was bound by Baker v. Nelson and found such bans to be constitutional. This created a split between circuits and led to a Supreme Court review. Decided on June 26, 2015, Obergefell overturned Baker and required states to issue marriage licenses to same-sex couples and to recognize same-sex marriages validly performed in other jurisdictions.

 

We can’t rest on our laurels, though. Sadly, all of these cases are in jeopardy with the current makeup of the Court. In 2022, the Supreme Court ruled in Dobbs v. Jackson Women's Health Organization that the provisions of the Due Process Clause of the Fourteenth Amendment have been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty." Justice Alito wrote the majority opinion, and Justices Thomas and Kavanaugh wrote separate concurrences. The most worrisome concurrence was by Thomas. He argued that the Court should go further in future cases, reconsidering other past Supreme Court cases that granted rights based on substantive due process, such as Griswold v. Connecticut (the right to contraception), Obergefell v. Hodges (the right to same-sex marriage), and Lawrence v. Texas (banned laws against private sexual acts). He wrote, "Because any substantive due process decision is 'demonstrably erroneous,' we have a duty to 'correct the error' established in those precedents." In Dobbs v. Jackson Women's Health Organization, for the first time in U.S. history, rather than expanding our recognition of constitutional rights, the court explicitly took a constitutional right away from the American people.