5.1: LGBTQ+ Legal History - Overview

Introduction

Historians often face the difficult task of determining how and when to tell the story of certain events, ideas, or people. This is no less true in telling the history of LGBTQ+ law in the United States. It may be surprising to many, but LGBTQ+ laws have a long, storied past and have existed as long as the United States itself. Laws enacted at local and state levels have long been used to regulate acceptable sex and gender norms. For example, in Arresting Dress, Clare Sears writes about the nineteenth-century San Francisco laws that outlawed cross-dressing.^[1] These laws and resistance to them tell important stories about how LGBTQ+ practices were regulated. This chapter focuses on some of the key legal doctrines that have been crucial in determining the overall landscape of LGBTQ+ rights in the United States and the Supreme Court’s interpretation of the U.S. Constitution and its application to protecting members of LGBTQ+ communities.

Throughout this chapter it is important to remember that our system of constitutional law is premised on the rights enumerated in the federal constitution being natural rights—that is, rights that are inalienable and preexist our government. What this means is that the Bill of Rights, the first ten amendments to the Constitution, does not grant any rights. Rather, each amendment represents a mandate for the government to not interfere with individual rights or to not prevent others from doing so. For example, the First Amendment right to free speech does not mean that the government has to give you the means to speak, but it cannot interfere with your inalienable right to do so.^[2] Crucial to any claim to protected rights is that one must be recognized as human. As anyone who is familiar with U.S. history knows, enslaved African and African Americans were deemed to be chattel (property) and not human, which served to deny them protections as enumerated by these rights. In addition, women, particularly married women, were not recognized as independent citizens and also lacked many of the Constitution’s enumerated rights. Though this egregious thinking would begin to be overturned in the latter half of the nineteenth century, keep it in mind as we survey the rights that eventually applied to members of the LGBTQ+ communities.

Ironically, sexuality, so basic to the human experience, was never mentioned in the original federal constitution or by James Madison, the principal architect of the Bill of Rights. This chapter provides an understanding of the constitutionally based issues that have influenced recent outcomes of the protected rights of LGBTQ+ communities. We begin with a closer look at the tenets that paved the way for recognition of sexual rights. Next we examine the process that eventually led the Supreme Court to extend these rights to include lesbian and gay sexualities. After that extension, the next large hurdle confronting the Court was the question of marriage equality. Finally, we briefly consider recent issues before the Court that go beyond sexual rights but strike at core understandings of LGBTQ+ equality.

Explore

The Supreme Court website (https://www.supremecourt.gov/) has more information about the Supreme Court, how it works, and its history and traditions.

• Find a case discussed in this chapter, and read or listen to the oral arguments presented for the case. Do these materials help you understand the case better?
• How does the Supreme Court work, and what are some of its traditions?
• Read about the court and constitutional interpretation; why is the Supreme Court considered a unique institution by world standards? What role does the U.S. Constitution play in this history?

Sexual Rights and the Constitution

The U.S. Constitution approved by the delegates to the 1787 Constitutional Convention did not include the protection of rights that were enumerated in the ten constitutional amendments, known as the Bill of Rights, that were eventually ratified in 1791. These amendments included guarantees such as the right to free speech, the right to due process, and the right to a speedy trial.^[3] What was not enumerated or made explicit was a right to sexual liberty. How, then, would “we the people” come to expect the Constitution to protect such rights, particularly with respect to same-sex sexualities? An answer to this question begins with the Ninth Amendment’s statement that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The inclusion of this amendment makes clear that the rights explicitly stated were not exclusive of those that were unenumerated and those that could not be anticipated. As the authors of Sexual Rights in America write, “As the guardian of fundamental rights unanticipated or underappreciated two centuries past, the Ninth Amendment transforms the Constitution from a static record of our forebears’ political and moral understandings into a dynamic and evolving expression of our basic rights.”^[4] To be clear, the Ninth Amendment was not intended to protect the rights of all. As noted earlier, rights were explicitly denied to the enslaved Africans and African Americans who were considered to be not human but chattel, “the name given to things which in law are deemed personal property.”^[5] Nor was the full range of rights available to women, particularly married women, who essentially merged their individuality into that of their husbands under the law of coverture. This meant that women were not only denied the vote but, when married, could not sign contracts or conduct other business independent from their husbands.^[6]

Nevertheless, the inclusion of the Ninth Amendment in the Bill of Rights provides a basis for protecting those rights considered to be natural and thus fundamental to liberty. As some have argued, this includes basic sexual rights, although the range and extent of these rights remains a source of great division among legal scholars and advocates.^[7] This was precisely the point made by Justice Arthur Goldberg in his concurring opinion in Griswold v. Connecticut (1965), in which the Supreme Court found that a married couple had the fundamental right to privacy within marriage.^[8] Arguing that the Ninth Amendment provided a constitutional basis for recognizing this fundamental right, Goldberg stated, To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment, and to give it no effect whatsoever.^[9]Despite what might appear to be an easy way to expand on the rights protected by the Ninth Amendment, the court has rarely addressed its meaning or expanded the list of unenumerated rights it might imply.

The amendment that would provide the basis for sexual rights was the Fourteenth Amendment, one of the three amendments ratified in the post–Civil War period, which states in part, No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.^[10]One interesting point to consider is that this amendment was ratified in response to the scourge of slavery’s system of racism. Under the Fourteenth Amendment, states could no longer deny some of its residents, particularly formerly enslaved people, their rights protected by the federal constitution. The least influential clause, the privileges and immunities clause, was significantly limited in scope by the Supreme Court in the Slaughter-House Cases (1873).^[11] However, the equal protection and due process clauses have played significant roles in the development of sexual rights. The Fourteenth Amendment’s due process clause does not specify what liberties it is meant to protect. The Court answered this question in Palko v. Connecticut (1937).^[12] Writing for the Supreme Court, Justice Benjamin Cardozo found that this clause protected only those liberties that were “of the very essence of a scheme of ordered liberty.”^[13] As a result of this decision, the liberties protected by the Bill of Rights were gradually applied to the states as well.

Privacy as a Fundamental Right

The Griswold case, in which the Supreme Court was asked to rule on whether a married couple had a right to birth control, took the Palko decision further and looked at whether such a right emanated from those enumerated within the Bill of Rights. In his Griswold majority opinion, Justice William Douglas wrote that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” He noted that a number of these guarantees create “zones of privacy” that suggest the framers certainly understood the existence of a fundamental right to privacy. Once this fundamental right was recognized, Douglas aptly applied it to intimate decisions between married couples.^[14] As is well known, this fundamental right to privacy became the basis for Justice Harry Blackmun’s majority opinion in Roe v. Wade (1973), which found that Texas did not have enough of an interest in interfering with a woman’s fundamental right to privacy in choosing whether to have an abortion during the first trimester.^[15] The trimester-based right to privacy was altered by the court’s subsequent decision in Planned Parenthood v. Casey (1992), so that the question of the state’s interest in preventing women from exercising their fundamental right to privacy came to be measured against fetal viability: the more viable, the more the state had an interest in protecting the fetus.^[16] Some have suggested that the Casey decision limited the fundamental quality of women’s right to privacy and is indicative of the Court’s willingness to limit the liberties protected under this Fourteenth Amendment right. Nevertheless, the Supreme Court’s decisions in the reproductive rights cases created the legal doctrine of the fundamental right to privacy that would eventually become useful in expanding the sexual rights extended to lesbian, gays, and bisexuals.

The Supreme Court first considered whether the right to privacy applied to same-sex sexuality in Bowers v. Hardwick.^[17] In this decision, made in 1986 as the AIDS epidemic was ravaging members of LGBTQ+ communities, the Supreme Court demonstrated that it was unwilling to extend the fundamental right to privacy protections to gay men. The Bowers case arose from a challenge to Georgia’s laws criminalizing sodomy. A remarkable fact in Bowers was that the acts in question occurred in the privacy of Michael Hardwick’s bedroom. An Atlanta police officer went to serve what turned out to be an invalid arrest warrant on Hardwick for his failure to appear in court on a citation for alleged public drinking. Hardwick’s roommate allowed the officer to enter, whereupon he opened the bedroom door to find Hardwick and another man having sex. The officer arrested both men, charging them with homosexual sodomy, a felony under Georgia law.^[18] From a legal advocacy perspective, this made the fact pattern in Bowers ideal to challenge Georgia’s sodomy law under the fundamental right to privacy. However, writing for the court, Justice Byron White did not find constitutional protection for homosexual sodomy. White noted the court’s previous review of fundamental rights surrounding heterosexual reproductive rights and found that homosexual sodomy was not “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.” He also dismissed the idea that the right to engage in homosexual sodomy was “deeply rooted in this Nation’s history and tradition.”^[19] This idea, that somehow homosexuality was not a part of U.S. history, inspired historians to produce a range of scholarship that would become instrumental in the Court’s decision to overturn Bowers.

It took the Court seventeen years to overturn its Bowers decision, during which several states continued to criminalize same-sex sexuality. It is notable, however, that in terms of the history of overturned precedents this period was brief. For instance, the court’s seminal Brown v. Board of Education decision, ending race-based segregation in education, was issued nearly sixty years after the separate-but-equal doctrine was set forth in Plessy v. Ferguson, allowing states to impose legally sanctioned racial segregation.^[20] The Bowers decision, however, held sway in the midst of the AIDS crisis and fostered an environment in which untold numbers of gay men would forgo early medical intervention in addressing the virus for fear of facing criminal charges.^[21]

By 2003 the cultural landscape had shifted enough for the court to reconsider the question of the fundamental right to privacy protections afforded to homosexual sex in the case of Lawrence v. Texas (2003).^[22] Writing for the majority, Justice Anthony Kennedy noted that the facts in Lawrence were similar to Bowers in that Lawrence and Garner were arrested for committing sodomy in the privacy of John Lawrence’s home when a police officer entered in response to a call about a weapons disturbance.^[23] The law in Texas criminalized homosexual but not heterosexual sodomy. While advocates offered equal protection arguments in addition to the Fourteenth’s due process protection of the fundamental right to privacy, Justice Kennedy wrote that the case “should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution.”^[24] Kennedy wrote that the sodomy laws sought to control behavior that was within the liberty of persons to choose without being punished as criminals. . . . It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. 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.^[25] Kennedy’s opinion specifically challenged the historical framework previously set forth in Bowers and, in so doing, established the rootedness of homosexual intimacy as a liberty protected by the fundamental right to privacy. It is noteworthy that Kennedy did not embrace the equal protection clause in his decision, noting that “were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants.”^[26] Kennedy did acknowledge that decriminalizing homosexual sodomy would lead to destigmatizing homosexuality itself, removing an unequal burden previously placed on homosexuals for their sexual intimacies.

Visit

Oyez (pronounced “Oh-yay”) is a multimedia archive devoted to making Supreme Court decisions available to all. It is a collaboration between Cornell’s Legal Information Institute, Justia, and Chicago-Kent College of Law.

• Visit the web page for the Supreme Court’s decision in Bowers v. Hardwick. (https://www.oyez.org/cases/1985/85-140) Listen to the oral argument; what surprised you the most about this exchange?
• Visit the web page for the Supreme Court’s decision in Lawrence v. Texas. (https://www.oyez.org/cases/2002/02-102) Listen to the oral argument for Lawrence; how does it compare with the oral arguments made in Bowers v. Hardwick?

One cannot overstate the impact of the Lawrence decision on the lives of LGB people whose intimate practices finally had protection as a fundamental liberty. That being said, some question the dependency of this liberty on a fundamental right to privacy because this emphasis on private sexual activities runs counter to practices within homosexual communities.^[27] They suggest that for gay men cruising and sex in public spaces has been an important, integral part of their identities. Within this context, the private sex that the fundamental right is based on is viewed as assimilationist because it continues to marginalize homosexuals or even outright erase components of their sexualities.^[28]

Check Your Knowledge

Contributed by Has Arakelyan, Rio Hondo College

Multiple-Choice Questions

1. What was the legal significance of the Supreme Court’s decision in Bowers v. Hardwick (1986)?
A) It decriminalized same-sex sexual activity nationwide.
B) It refused to extend the fundamental right to privacy to same-sex sexual conduct, upholding sodomy laws.
C) It established marriage equality.
D) It overturned all state sodomy laws.

2. How did the facts of the Bowers v. Hardwick case make it an ideal challenge to Georgia’s sodomy law?
A) The acts occurred in a public place.
B) The case involved only heterosexual couples.
C) The acts occurred in the privacy of Hardwick’s bedroom, highlighting the issue of privacy rights.
D) The arrest was for public drinking.

3. What was a major consequence of the Bowers decision for the LGBTQ+ community during the AIDS crisis?
A) It fostered an environment of fear, causing many to avoid seeking medical help.
B) It encouraged early medical intervention.
C) It legalized same-sex marriage.
D) It led to the immediate repeal of sodomy laws.

4. What constitutional argument did Justice Kennedy use in Lawrence v. Texas (2003) to overturn Bowers?
A) The First Amendment right to free speech.
B) The Ninth Amendment.
C) The Equal Protection Clause.
D) The Due Process Clause of the Fourteenth Amendment protecting liberty and privacy.

5. How did the Lawrence v. Texas decision change the legal landscape for LGBTQ+ rights in the United States?
A) It affirmed the right of adults to engage in private, consensual sexual conduct, decriminalizing same-sex sexual activity.
B) It upheld the criminalization of same-sex sexual activity.
C) It banned same-sex marriage.
D) It limited the right to privacy.

Discussion Questions

1. Analyze the reasoning used by the Supreme Court in Bowers v. Hardwick. How did the Court’s interpretation of history and tradition influence its decision, and what were the broader social consequences?
2. Discuss the significance of the shift from Bowers v. Hardwick to Lawrence v. Texas. What social, cultural, and legal changes made this reversal possible within just seventeen years?
3. How did the criminalization of same-sex sexual activity under sodomy laws impact the health, safety, and civil rights of LGBTQ+ individuals during the AIDS crisis?
4. In what ways did the Supreme Court’s evolving interpretation of the Fourteenth Amendment’s Due Process Clause expand the scope of privacy and liberty rights for marginalized groups?
5. Reflect on the role of legal advocacy and historical scholarship in overturning precedents like Bowers. How do legal arguments and historical narratives interact to shape constitutional rights?

Multiple-Choice Questions - Answers

1. B) It refused to extend the fundamental right to privacy to same-sex sexual conduct, upholding sodomy laws.
2. C) The acts occurred in the privacy of Hardwick’s bedroom, highlighting the issue of privacy rights.
3. A) It fostered an environment of fear, causing many to avoid seeking medical help.
4. D) The Due Process Clause of the Fourteenth Amendment protecting liberty and privacy.
5. A) It affirmed the right of adults to engage in private, consensual sexual conduct, decriminalizing same-sex sexual activity.