Having achieved the decriminalization of homosexuality in Lawrence, the question of the legal status of same-sex marriage became a focus of LGBTQ+ activism. This was due, in part, to the increase in anti-LGBTQ+ sentiment that resulted from the notion that the Lawrence decision had gone too far in normalizing homosexuality. Justice Antonin Scalia iterated this concern when he noted that after the court’s ruling, limiting marriage to heterosexuals was on “pretty shaky grounds.”[29] The focus on marriage equality was also due to LGB couples being denied basic protections during the AIDS epidemic, ranging from partners being denied input into medical decision-making to the eviction of surviving partners from their apartments.[30]
As advocates conducted a state-by-state effort to gain marriage equality, Hawaii became the first state in which its court ruled on the issue. In the 1996 case of Baehr v. Miike (originally known as Baehr v. Lewin when it was brought to court in 1993), the Hawaii Supreme Court ruled that same-sex marriage was legal given the state constitution’s equal rights amendment.[31] However, the impact of this decision was curtailed by the state legislature in 1998 when, after a statewide referendum, it amended the state constitution to define marriage to be legal only for opposite-sex couples. This constitutional change reflected the federal Defense of Marriage Act of 1996 (DOMA), which defined marriage as a “legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”[32] During the ensuing period, several states took up the question of whether state laws would allow or ban same-sex marriage. In 2004 Massachusetts became the first state to legalize same-sex marriage. By the time the U.S. Supreme Court addressed the question of same-sex marriage in United States v. Windsor, thirty-seven states had legalized same-sex marriage.[33]
Same-sex marriage was not wholly embraced within LGBTQ+ communities. Some, like the LGBTQ+ attorney Paula Ettelbrick, argued that marriage was a patriarchal institution that would not liberate lesbians and gay men but would “force our assimilation into the mainstream and undermine the goals of gay liberation.”[34] Others maintained that same-sex marriage was misdirecting the LGBTQ+ movement’s attention away from more important efforts, including the kind of legal reform that would overturn laws targeting LGBTQ+ people.[35] Despite these objections, the main LGBTQ+ advocacy groups focused the bulk of their efforts on achieving marriage equality for same-sex couples. The widespread disagreement between state laws and DOMA finally led the Supreme Court to address same-sex marriage in Windsor in 2013. That case involved the surviving partner of a same-sex marriage, Edith Windsor, who sought a refund from the Internal Revenue Service for taxes she was forced to pay on the estate of her spouse, Thea Spyer. Normally, spouses were exempt from paying taxes on their partner’s estate, but the IRS determined that irrespective of whether Windsor’s marriage was legal under New York state law, DOMA meant that it was not legal under federal law. Writing for the majority, Justice Kennedy concluded that DOMA’s “principal effect is to identify a subset of state-sanctioned marriages and make them unequal.” He therefore declared DOMA as a violation of equal protection.[36]
Windsor was a significant victory for same-sex marriage proponents because it declared DOMA unconstitutional. However, the question of whether states were allowed to prohibit same-sex marriages within their jurisdictions would not be resolved until 2015, two years after the Windsor decision, in the case of Obergefell v. Hodges (figure 5.5). Again writing for the majority, Justice Kennedy found that there was no justification for making a distinction between same-sex and opposite-sex marriages: “The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest.”[37] Kennedy looked at the fundamental nature of marriage itself and determined that four guiding principles warranted constitutional protection for same-sex couples. First, he noted that the Court consistently found that the personal decision to marry was inherent to the idea of individual liberty. Second, Kennedy acknowledged that the Court had previously determined marriage to be a union unlike any other and that went to the heart of individual liberty. Third, he found that “by giving recognition and legal structure to their parents’ relationship, marriage allows children ‘to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.’” Fourth, Kennedy stated that “this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order.”[38]
Figure \(\PageIndex{1}\): A woman holds two signs, "Be on the right side of history" and "Live is a family value". The image is from a demonstration that took place outside of the United States Supreme Court Building on the opening day of the Obergefell Vs Hodges hearing. ("Be On The Right Side of History Love Is A Family Value" by Jordan Uhl is licensed under CC BY 2.0 / is a derivative from the original work)
Through this analysis Kennedy found that the fundamental right for same-sex couples to marry was protected by the Fourteenth Amendment’s due process clause. He went further to note that there was a synergy between this clause and the Fourteenth Amendment’s equal protection clause. He wrote, “The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. . . . In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right.”[39] The legal scholar Lawrence Tribe has argued that, by linking equal protection to due process, Kennedy gives centrality and meaning to the legal doctrine of “equal dignity.”[40] Tribe suggests that equal dignity means all individuals deserve personal autonomy and freedom to define their own identity or existence. However, Kennedy’s focus on the tradition and sanctity of marriage in our social order enveloped the issue of LGBTQ+ rights under the cover of conservative notions of family values.[41] Certainly, intimacy plays a significant role in the way many LGBTQ+ people live their lives, but as others have suggested, this alone is not the sole basis for what it means to be queer.
Describe how the history of Lambda Legal reflects the broader struggle for LGBTQ+ liberation; what key issues are being litigated, and what were key watershed moments?
What is the history of the legal fight for marriage equality, at both the state and the national levels?
What range of work does Lambda Legal engage in? Pick one particular focus; what is a recent court decision relevant to that area of work?
LGBTQ+ and Equality
Before its Obergefell decision, the Supreme Court confronted the question of whether the equal protection clause protected against discrimination toward LGBTQ+ people. In 1996 the Court heard the case of Romer v. Evans, in which it was faced with the decision of whether Colorado’s Amendment 2 violated the equal protection clause. Amendment 2 was adopted in response to several municipal laws that banned discrimination in housing, employment, education, and public accommodation against LGBTQ+ people. The amendment prohibited any law designed to protect the status of people on the basis of their “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.”[42] The state essentially argued that Amendment 2 did nothing more than put LGBTQ+ people on the same footing as all other Colorado residents who weren’t afforded the specific protections of the various laws within the state. However, in a decision authored by Justice Kennedy, the Court found that Amendment 2 violated the equal protection clauseand was unconstitutional. Kennedy explained, The Fourteenth Amendment’s promise that no person shall be denied the equal protection of the laws must co exist [sic] with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. . . . We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. . . . Amendment 2 fails, indeed defies, even this conventional inquiry.[43]
Kennedy found that Amendment 2’s exclusion of LGBTQ+ people from receiving legal protections already afforded to others failed to have a rational relationship to a legitimate governmental purpose, and as a result, it violated the minimal standard of review for equal protection cases.[44] This outcome was significant, especially coming after the Bowers decision, but it did not offer the kind of more rigid review given to laws that discriminate on the basis of race or gender. Some suggest that Kennedy’s use of the rational basis test meant that laws targeting LGBTQ+ people for unequal treatment might survive because legislation that could be rationalized would not violate the equal protection clause.[45] For instance, in the case of Boy Scouts of America v. Dale (2000) the court found that the Boy Scouts of America could revoke the adult membership of James Dale, who was a former Eagle Scout and assistant scoutmaster at the time of his ouster. The Boy Scouts claimed that their freedom of expressive association rights would be violated if forced to include Dale, who was a known homosexual and gay rights activist. Writing for the majority, Chief Justice William Rehnquist found,
We are not, as we must not be, guided by our views of whether the Boy Scouts’ teachings with respect to homosexual conduct are right or wrong; public or judicial disapproval of a tenet of an organization’s expression does not justify the State’s effort to compel the organization to accept members where such acceptance would derogate from the organization’s expressive message.[46]
Rehnquist’s opinion read much more into the “expressive” association than was evidenced by the Boy Scouts’ mission, oath, and handbook. Indeed, none of the written records Rehnquist relied on explicitly mentioned how the values the organization purportedly espoused were directly challenged by the inclusion of Dale. This case has not been overturned, although the Boy Scouts themselves have, in recent years, opened their doors to gay men and lesbians.
If a heightened review of LGBTQ+ equal protection had been implemented in the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018), that might have influenced its outcome. In that case the Court was faced with the question of whether a Colorado baker’s religious freedom protected his right to not make a wedding cake for a same-sex wedding (figure 5.6). The couple in this case brought a complaint to Colorado’s Civil Rights Commission, which found in their favor, citing the state’s antidiscrimination law. Justice Kennedy wrote for the court, “While it is unexceptional that Colorado law can protect gay persons in acquiring products and services on the same terms and conditions as are offered to other members of the public, the law must be applied in a manner that is neutral toward religion.”[47] However, this case was narrowly decided in that the Court’s ruling was not so much about religious freedom as it was about the obvious hostility toward the baker’s religious beliefs as expressed by the state’s civil rights commission. In this way the Court left open the door of whether religious freedom protections outweigh the right for LGBTQ+ people to live free from discrimination. As the NAACP Legal Defense and Educational Fund amicus brief argued, allowing religious beliefs to serve as a basis for discrimination puts in jeopardy groups like African Americans who historically endured discrimination because of the religious beliefs held by some that whites were naturally superior to nonwhites.[48] Applying heightened scrutiny to laws and acts that discriminate against LGBTQ+ people might tip the balance of such cases in favor of equal protection over religious freedom in the future. The previous cases look at issues related to the Constitution’s protection against sexuality discrimination. The Court decided in 2020 that legal protections extend to those who are gender nonconforming. In Bostock v. Clayton County, Georgia, the Court held that gay and gender-nonconforming people are protected by Title VII of the Civil Rights Act, which bars employers from discriminating against employees on the basis of sex, race, national origin, and religion.[49]
Indeed, the United States has a long history of discriminating against gender-nonconforming people. Several cities, including San Francisco and New York, had laws that criminalized those who wore clothing not deemed appropriate to their sex.[50] Today, discrimination against gender-nonconforming people is fairly common. New York allows individuals to change their gender on their driver’s licenses and other official documents, but few other states do. As is often discussed, the grouping of gender-nonconforming people under the LGBTQ+ umbrella has often meant specific gender-based issues are overshadowed by those that are sexuality based. Nevertheless, in the case of Price Waterhouse v. Hopkins (1989), the Court determined that sex stereotyping was a form of prohibited sex discrimination, which might open the door for greater protections for those who are gender nonconforming. In that case, Ann Hopkins was denied partnership in an accounting firm because several of the review partners found that she was not feminine enough. The Court found that this was a form of sex stereotyping, which it defined as “a person’s nonconformity to social or other expectations of that person’s gender.”[51] In its conclusion the Court found that the sex-based actions would be permissible if the employer could prove that Hopkins would not have been promoted in any event, but it was unable to do so in the subsequent court hearings. Though this precedent provides some hope to those advocating on behalf of LGBTQ+ people, it remains to be seen whether the Court will go so far as to afford protections against workplace discrimination in a way that expands the current scope of its previous decisions and current federal laws.
Check Your Knowledge
Contributed by Has Arakelyan, Rio Hondo College
Multiple-Choice Questions
1. What was the main legal effect of the Supreme Court’s decision in United States v. Windsor (2013)?
A) It legalized same-sex marriage nationwide.
B) It declared the federal Defense of Marriage Act (DOMA) unconstitutional, requiring federal recognition of state-sanctioned same-sex marriages.
C) It banned same-sex marriage in all states.
D) It overturned Obergefell v. Hodges.
2. In Obergefell v. Hodges (2015), which constitutional principles did Justice Kennedy link to justify marriage equality?
A) The First Amendment and the Commerce Clause
B) The Ninth Amendment and the Supremacy Clause
C) The Tenth Amendment and the Establishment Clause
D) The Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment
3. What was the Supreme Court’s reasoning in Romer v. Evans (1996) regarding Colorado’s Amendment 2?
A) It was a legitimate exercise of state power.
B) It was protected by religious freedom.
C) It failed even rational basis review and violated the Equal Protection Clause by singling out LGBTQ+ people for exclusion from legal protections.
D) It was required by federal law.
4. What unresolved issue did the Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018) decision leave open?
A) Whether religious freedom can justify discrimination against LGBTQ+ people in providing goods and services.
B) Whether states could ban same-sex marriage.
C) Whether Title VII protects gender-nonconforming people.
D) Whether DOMA was constitutional.
5. What did the Supreme Court decide in Bostock v. Clayton County, Georgia (2020)?
A) Title VII does not protect LGBTQ+ employees.
B) States can ban same-sex marriage.
C) Title VII protects gay and gender-nonconforming people from employment discrimination.
D) Religious freedom always outweighs anti-discrimination laws.
Discussion Questions
Analyze how the Supreme Court’s reasoning in Windsor and Obergefell built upon earlier equal protection and due process precedents. How did the Court’s understanding of “equal dignity” shape the outcome?
Discuss the significance of the rational basis review in Romer v. Evans. How did this standard both advance and limit the protection of LGBTQ+ rights under the Equal Protection Clause?
The Masterpiece Cakeshop decision was narrowly focused on the state’s treatment of religious beliefs. What are the broader implications for future cases involving conflicts between religious freedom and anti-discrimination protections for LGBTQ+ people?
How did the Bostock v. Clayton County decision expand the scope of Title VII protections? In what ways does this decision reflect ongoing challenges for gender-nonconforming individuals in the workplace and beyond?
Consider the critiques within the LGBTQ+ community regarding the focus on marriage equality. How might the emphasis on marriage and “equal dignity” both advance and constrain the broader goals of LGBTQ+ activism, especially for those whose needs are not addressed by marriage rights?
Multiple-Choice Questions - Answers
1. B) It declared the federal Defense of Marriage Act (DOMA) unconstitutional, requiring federal recognition of state-sanctioned same-sex marriages.
2. D) The Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment
3. C) It failed even rational basis review and violated the Equal Protection Clause by singling out LGBTQ+ people for exclusion from legal protections.
4. A) Whether religious freedom can justify discrimination against LGBTQ+ people in providing goods and services.
5. C) Title VII protects gay and gender-nonconforming people from employment discrimination.
