Gay and lesbian rights

Description: The evolution of constitutional protections against legal discrimination imposed on the basis of sexual orientation and gender identity.

Relevant amendments: Fifth, Ninth, Fourteenth

Significance: Rulings by the Supreme Court that protect LGBTQ individuals’ sexual privacy and protect against discriminatory treatment by the law progressed over the twentieth and twenty-first centuries. After avoiding the issue of gay and lesbian rights through denials of certiorari, in 2015, the Supreme Court legalized same sex marriage nationwide. In 2020, they prohibited employment discrimination based on sexual orientation or gender identity.

The US Constitution does not expressly assign rights to persons based on their sexual orientation. However, the due process clauses of the Fifth and Fourteenth Amendments promise fair treatment by the legal system. The equal protection clause of the Fourteenth Amendment guarantees equality before the states, and the Supreme Court has construed the due process clause of the Fifth Amendment as imposing a similar requirement on the federal government. These clauses would seem to offer homosexual individuals considerable protection from the kinds of legal discrimination and disability that has long been their lot.

In Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972), the Court found a right of privacy that encompassed the decision to use contraceptives. These cases, combined with rulings creating reproductive rights, suggested to some a broad due process right of privacy over intimate choices, possibly including the choice of sexual partner. The Court was invited to rule on this issue on several occasions, an invitation that was declined through denials of certiorari until 1986. In Bowers v. Hardwick (1986), a sharply divided Court held that this right of privacy did not encompass what was then classified as consensual homosexual sodomy. The right of privacy pertained to matters of reproduction, marriage, and family, and the Court viewed homosexual relationships as unrelated to any of these. Dissenters construed the issue presented in prior cases and in Bowers differently, as invoking a broad right to be left alone. Twenty-four states then had sodomy statutes, enforced nearly exclusively against LGBTQ individuals. These laws were later repealed.

Discrimination against LGBTQ persons in employment housing, public accommodations, and elsewhere has fueled demands for legislative relief, and some jurisdictions, mostly on the municipal level, have responded. A backlash against such ordinances produced Colorado’s Amendment 2, an amendment to the state constitution adopted by popular referendum, prohibiting legislation protecting homosexuals from discrimination. In Romer v. Evans (1996), the Court ruled that Amendment 2 violated the equal protection clause of the Fourteenth Amendment. The equal protection clause did not obligate the states to enact legislative protections. However, Colorado’s constitutional preclusion of legislative protection was found “inexplicable by anything but animus” against homosexuals and did not further any proper state policy but only inequality for its own sake. “A state cannot so deem a class of persons strangers to its laws,” the Court stated. That same year, the Defense of Marriage Act (DOMA) was passed, which defined marriage according to federal law as a union between one man and one woman, effectively denying marriage to same-sex couples.

Things began to turn around for the LGBTQ community at the turn of the century. In the landmark case, Lawrence v. Texas, the Supreme Court declared in 2003 that sodomy laws (laws prohibiting sexual activity between same-sex couples) were unconstitutional and violated the right to privacy, as well as the Fourteenth Amendment's Due Process Clause. The same year, Massachusetts became the first state to legalize same sex marriage. Over the next few years, many states would follow suit.

In 2013 in the case United States v. Windsor, the Supreme Court declared part of DOMA unconstitutional. It ruled that in states where gay marriage was legal, those couples would also receive the same treatment as heterosexual couples on the federal level. In 2015, however, the biggest case on gay rights was brought before the Supreme Court, Obergefell v. Hodges. On June 26, 2015, the Supreme Court ruled that bans on gay marriage were unconstitutional, and in violation of the Fourteenth Amendment. This ruling declared that same sex marriage was legal nationwide.

In 2020, the Supreme Court ruled in Bostock v. Clayton Country that Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on sexual orientation or gender identity.

Bibliography

Gertsmann, Evan. The Constitutional Underclass: Gays, Lesbians, and the Failure of Class-Based Equal Protection. Chicago: University of Chicago Press, 1999.

"LGBTQ Rights" ADL, www.adl.org/what-we-do/discrimination/lgbtq-rights. Accessed 24 Nov. 2020.

Liptak, Adam. "Civil Rights Law Protects Gay and Transgender Workers, Supreme Court Rules." The New York Times, 16 June 2020, www.nytimes.com/2020/06/15/us/gay-transgender-workers-supreme-court.html. Accessed 24 Nov. 2020.

Miller, Diane Helen. Freedom to Differ: The Shaping of the Gay and Lesbian Struggle for Civil Rights. New York: New York University Press, 1998.

Nava, Michael, and Robert Dawidoff. Created Equal: Why Gay Rights Matter in America. New York: St. Martin’s Press, 1995.

Schwartz, John. "Between the Lines of the Defense of Marriage Act Opinion." New York Times. New York Times, 26 June 2013. Web. 1 July 2016.

Supreme Court of the US. Bostock v. Clayton Couny, Georgia. No. 17–1618, 15 June 2020, www.supremecourt.gov/opinions/19pdf/17-1618‗hfci.pdf. Accessed 24 Nov. 2020.