6.4: Sexual Orientation

The movement for civil rights pertaining to sexual orientation in the United States rose to prominence beginning in the 1960s. Romantic relationships between people of the same sex existed in America before this time but were often concealed for fear of condemnation. With the ’60s came a new, more critical perspective on traditional morality, particularly regarding sexual activity. Lesbian, gay, bisexual, and transgender (LGBT) Americans who had previously kept their identities and relationships secret began to not just admit but celebrate them openly in defiance of those who disapproved of their lifestyles.

As with other civil rights movements, the LGBT rights movement made litigation a key element of its strategy. The 1986 Supreme Court case Bowers v. Hardwick upheld a Georgia anti-sodomy law that criminalized homosexual sex (among other sexual activities). In 2003, the court reversed itself in Lawrence v. Texas, citing the right to privacy as grounds to strike down all state laws forbidding sexual activity between same-sex partners.

Shortly after Lawrence was decided, Massachusetts became the first state to legalize same-sex marriage in 2004. Some states followed Massachusetts’s lead. Others legalized “civil unions” between same-sex couples, which were similar to but not technically marriages. Still others passed constitutional amendments defining marriage as a relationship between one man and one woman. This patchwork of marriage laws was ultimately made uniform in 2015, when the Supreme Court ruled in Obergefell v. Hodges that the Fourteenth Amendment guaranteed same-sex couples the same right to marry as opposite-sex couples. Five years later, the court declared in 2020’s Bostock v. Clayton County that the 1964 Civil Rights Act protects employees from discrimination on the basis of their sexual orientation or transgender status.

As American laws have become less hostile and more open to same-sex relationships, Americans themselves have as well (as demonstrated in Figure 6.2 below). This shift in public opinion has been both a cause and an effect of legal change. As public support for previously frowned-upon lifestyles increases, so does the pressure on political actors to change laws, which in turn serves to normalize the newly legal activities in the minds of the public. For a sense of how rapidly this change was, consider that Barack Obama campaigned for president in 2008 as a Democrat while opposing same-sex marriage (though at the time he described his views on the issue as “evolving”). Obama was succeeded in office by Donald Trump, a Republican who ran for president in 2016 while supporting same-sex marriage and who even held up a rainbow pride flag at a campaign event.

Figure 6.2: Percentage of Americans supporting same-sex marriage before and after Obergefell v. Hodges, 1996–2022 (Source: Gallup)