From Bowers to Obergefell: An Analysis of the LGBTQ+ Rights Movement Before the U.S. Supreme Court
ARTICLE by Isaac James
VOLUME VIII ISSUE I
In October 2019, the U.S. Supreme Court heard three monumental cases likely to determine the applicability of federal employment discrimination laws to LGBTQ+ individuals. The stakes for these decisions could not be higher. Since the early 2000s, both the Court and the nation have progressed toward full equality for LGBTQ+ individuals. Beginning with Lawrence v. Texas (2003),1 the Supreme Court decriminalized sodomy, ruled against an act that defined marriage as the union between one man and one woman in United States v. Windsor (2013),2 and granted same-sex couples the fundamental right to marriage through Obergefell v. Hodges (2015).3 Yet, alarmingly, this forward progress runs the risk of coming to a halt. In 2018, Justice Anthony Kennedy announced his retirement from the Supreme Court. Justice Kennedy, the Court’s swing vote who often sided with the liberal-leaning justices on LGBTQ+ cases, was the author of both the Lawrence and Obergefell decisions. His successor, Justice Brett Kavanaugh, has decisively shifted the balance of power on the Supreme Court toward conservative legal theory. Justice Kavanaugh will likely join the other four conservative-leaning justices, who have consistently voted against the expansion of rights for LGBTQ+ people, in a majority of future cases.4 A review of the history of LGBTQ+ rights cases before the Supreme Court, including both the early failures and the ensuing successes that defined legal strategies used in the following decades, is warranted ahead of arguably the most contentious decision on LBGTQ+ rights since Obergefell.
I. The Early Struggle: Bowers v. Hardwick
The Court’s affirmation and expansion of LGBTQ+ rights has
been commonplace in recent memory. In fact, since the late 1990s, the Supreme Court has yet to issue a decision restricting the civil rights of LGBTQ+ individuals.5 But this has not always been the case. In August 1982, Atlanta police officer Keith Torick entered the home of Michael Hardwick to serve an invalid warrant for a missed court date. While serving this invalid warrant, Torick witnessed the homeowner and his male partner engaging in consensual oral sex.6 Torick subsequently arrested Hardwick and his companion for sodomy, a Georgia felony which carried the possibility of imprisonment for one to 20 years. Due to the invalid warrant and personal opposition to the sodomy law, the Fulton County District Attorney decided not to prosecute the two men after Hardwick and his partner spent 10 hours in jail. Hardwick, represented by the American Civil Liberties Union, filed a lawsuit in federal court against Georgia Attorney General Michael Bowers, arguing that the sodomy law was unconstitutional. The U.S. District Court for the Northern District of Georgia upheld the Georgia sodomy statute, which was then struck down upon appeal to the Eleventh Circuit Court of Appeals. The case reached the Supreme Court in 1985.
The central argument in Bowers v. Hardwick concerned privacy. The “fundamental right to privacy,” the plaintiff argued, was infringed upon when he was arrested for sexual activity conducted in the privacy of his own home. This argument has roots in Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972).7 In both of these cases, the Court established the penumbra, or implied right, of privacy
emitting from the Bill of Rights and the First, Third, Fourth, and Fifth Amendments of the U.S. Constitution.8 While the privacy concerns established in Griswold and Eisenstadt were unrelated to Bowers, the recognition and extension of privacy rights to the bedroom represented a major advancement in U.S. constitutional interpretation. Hardwick believed these cases would support a winning argument, as it seemed unlikely for the Court to shy away from applying this understanding of privacy to same-sex couples.
The first holding of Justice Byron White’s majority opinion is that “the Constitution does not confer a fundamental right upon homosexuals to engage in sodomy.”9 Although the majority recognized the prior string of cases expanding privacy rights in areas like education, family relationships, procreation, marriage, contraception, and abortion, the justices believed “none of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy.”10 Justice White and his colleagues made abundantly clear their belief in the distinction between the privacy of homosexual individuals and married and unmarried heterosexual couples. Unfortunately, the harmful rhetoric and discriminatory attitudes toward the LGBTQ+ community in Bowers remained the law of the land for almost two decades.
The response of the LGBTQ+ community and its allies was a mixed bag. Across the nation, people gathered to protest, organize, and strategize about the path forward from Bowers.11 The initial reaction from the legal establishment was one of regret; a common opinion emerged that this case should not have been litigated. Many believed that if the activists had avoided this issue, the damaging opinion could have been prevented entirely. But that point of view ignores the significant impact of public visibility. Through witnessing Hardwick’s
fight, Americans were able to form their own opinions on the LGBTQ+ community, often favorably. The following is a statement from Michael Hardwick on his experience directly after the release of the opinion:
When I started this case, people had never heard of AIDS, and that all developed as my case
developed. And all the negative impressions that society and the media have been producing
for the last three years had just about reached a high point when the decision came down
and they asked me to come out nationally. [Until the Court rendered its decision, Hardwick
retained a low profile and avoided media, on the advice of his attorneys.] That affected me
a lot. When I first started speaking, I thought that some crazy fundamentalist was going to
blow my head off. Once I overcame that fear and a month or two went by, people would
stop me and say, I'm not a homosexual but I definitely agree with what you're doing. This
is America and we have the right to privacy, and the Constitution should protect us.
They were supportive once they understood the issue and how it affected them.12
While the case failed to result in a positive outcome for Hardwick, it opened America’s eyes to the plight faced by the LGBTQ+ community while simultaneously bringing civil rights into the forefront of national dialogue. In this sense, Bowers paved the way for Romer v. Evans (1996) and other future cases that led to widespread acceptance of LGBTQ+ people by the United States and its highest court.
II. A Snowball Effect: From Romer to Obergefell
Activists and legal experts refused to give up fighting for civil rights before the federal judiciary. After the community’s bruising defeat in Bowers, the next case concerning LGBTQ+ rights to reach the
Supreme Court was Romer. The case began in 1992, when Colorado voters approved the addition of Amendment Two to the Colorado Constitution. This amendment would have prohibited the enaction of any judicial, legislative, or executive motion intended to protect LGBTQ+ people from discrimination. Court challenges to the amendment emerged shortly after, arguing that it violated the Fourteenth Amendment’s Equal Protection Clause. Romer reached the Supreme Court in 1995, and the majority opinion, authored by Justice Kennedy, was released in 1996. The final paragraph of the ruling presents a significant shift in opinion by the Supreme Court from the Bowers decision a decade earlier. In the opinion, Justice Kennedy explained that the Court “must conclude that Amendment Two classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws.”13 The justices supported the plaintiff’s argument that LGBTQ+ people should be treated no different from their heterosexual and cisgender counterparts. Through Romer, the Supreme Court conclusively ended classification of LGBTQ+ people as second-class citizens and, in doing so, established a precedent for many important decisions to come.
Romer created a domino effect of successful case results for the LGBTQ+ community before the Supreme Court. Lawrence finished the job that Hardwick began in Bowers. In Lawrence, the law in question was a Texas statute that specifically prohibited same-sex sodomy. This time, however, the Court struck down the statue and overturned Bowers. Justice Kennedy again wrote the majority opinion, stating that “the liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.”14 Justice Kennedy then cited Romer, describing how while Romer did not overturn Bowers, it cast doubt on the constitutionality of upholding “class-based legislation directed at homosexuals.”15 Thanks to Romer, Lawrence was the next step in the line of expanding LGBTQ+ rights cases that would eventually lead to Obergefell.
The next Supreme Court case to follow was United States v. Windsor (2013), a case concerning same-sex marriage. At issue was Section 3 of the Defense of Marriage Act, a 1996 law which defined marriage for federal purposes as a union between one man and one woman. This law effectively provided states with the right to refuse recognition of same-sex marriages conducted in other states. Similar to Lawrence and Romer, Windsor resulted in a win for the LGBTQ+ community. Justice Kennedy wrote that the principal purpose of the Defense of Marriage Act was “to identify and make unequal a subset of state-sanctioned marriages.”16 This, the Court ruled, violated the Due Process Clause of the Fifth Amendment. After the Windsor decision, it was almost certain that same-sex marriage would be ruled constitutional by the Supreme Court. Two years later, the Court heard oral arguments in Obergefell.
Granted by the Supreme Court to address a discrepancy in rulings between the Sixth Circuit Court of Appeals and the Fourth, Seventh, Ninth, and Tenth Circuits, Obergefell was argued on April 28, 2015, before a crowded courtroom. The plaintiff, James Obergefell, alleged that the State of Ohio discriminated against his same-sex relationship by refusing to identify his name on the death certificate of his husband, John Arthur; the couple was legally wed in Maryland. On June 26, 2015, the Court ruled in favor of Obergefell, declaring marriage a fundamental right which must be guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.17 Justice Kennedy again wrote the Court’s majority opinion, explaining that “there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.”18 The successful outcome of Obergefell represented decades of hard work by legal advocates and LGBTQ+ activists. Today, however, the
Roberts Court looks significantly different. Justice Kennedy, the Court’s swing vote who wrote most of the significant opinions protecting LGBTQ+ rights, left the Court and has since been replaced by the conservative Justice Brett Kavanaugh. This change in the Court’s composition jeopardizes future cases that could protect LGBTQ+ people from discrimination. Three of these such cases will be heard in the 2019 term.
III. At Stake Today
Three cases concerning the scope of federal employment statutes are set for oral argument before the Supreme Court beginning in October 2019. The Court, for the first time in decades, is poised to issue decisions that restrict the freedoms of LGBTQ+ individuals and effectively enshrine discrimination against queer and transgender people in the U.S. Constitution. Although the cases are not yet officially decided, the jurisprudential history of justices on the Roberts Court indicates trouble for the plaintiffs. Two concern treatment of gay and lesbian individuals, while the third involves treatment of transgender individuals.
Bostock v. Clayton County came to fruition following Clayton County’s firing of a gay child-welfare-services coordinator, Gerald Bostock. Bostock claims that the county fired him for being gay, despite the fact that he worked in his capacity for over a decade and received great reviews from clients. Bostock’s case found its way before the Eleventh Circuit, where he argued that his firing violated Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex. The Eleventh Circuit disagreed, and the Supreme Court granted certiorari on April 22, 2019.
In Altitude Express v. Zarda, another case concerning the firing of a gay employee, the Second Circuit Court of Appeals interpreted the statute in a different light than the Eleventh Circuit. Donald Zarda, who argues he was fired for being gay, was a skydiving instructor in New York. Zarda often told female clients about his sexuality to help them overcome discomfort associated with the close-quarters arrangements necessitated by his profession. Zarda’s case found its way to the Second Circuit, where he, like Bostock, argued that his
firing violated Title VII. The Second Circuit ruled that discrimination based on sexual orientation falls under sex discrimination and is thus unconstitutional. The Supreme Court granted certiorari on April 22, 2019.
The third case to be argued before the Court involves the firing of a transgender woman named Aimee Stephens. Stephens worked as an embalmer and funeral director at R.G. & G.R. Funeral Homes in Michigan. Funeralhome owner Thomas Rost fired Stephens after being told that Stephens, who formerly identified as a male named Anthony, intended to live and work as a woman. Stephens filed a discrimination complaint with the Equal Employment Opportunity Commission, which then alleged that the funeral home violated Title VII. The case made its way to the Sixth Circuit, which ruled that Title VII protected Stephens.
These three cases will be heard by the most conservative composition of the Supreme Court in modern memory. The replacement of Justice Kennedy with Justice Kavanaugh is likely to influence future decisions that will impact the LBGTQ+ community. Regardless of the Court’s conclusions, the consequences will reverberate for generations.
IV . Conclusion
Over the past three decades, the Supreme Court has been a vehicle for transformative social and legal change for the LGBTQ+ community. Starting with Romer, advocates have placed the Supreme Court at the center of the strategy to increase LGBTQ+ rights and acceptance throughout the United States. In fact, Supreme Court decisions have served as important milestones for improving popular opinion of the LGBTQ+ community. For example, following the Obergefell decision, “support for same-sex marriage was significantly higher” among the general U.S. population.19 If the Court rules that employment discrimination of LGBTQ+ individuals is constitutional, popular opinion of queer and transgender individuals is unlikely to
increase. Regardless of public perception, however, advocates’ strategies would likely shift from a court-centric focus to legislative process. This effort may appear as national- or state-level legislation protecting LGBTQ+ employers or as increased efforts to offer nonbinary gender marker options on legal identification.
The outcomes of these cases will leave a lasting impact on the LGBTQ+ rights movement and the struggle for queer and transgender individuals to achieve the same level of equality afforded to their peers. The question now stands as to whether these upcoming cases will be remembered in the same vein as Bowers or Romer.
1 Lawrence v. Texas, 539 U.S. 558 (2003).
2 United States v. Windsor, 570 U.S. 744 (2013).
3 Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
4 Adam Liptak, Confirming Kavanaugh: A Triumph for Conservatives, but a Blow to
the Court’s Image, N.Y Tɪᴍᴇs, Oct. 30, 2019, available at https://www.nytimes
5 Since Bowers, the Court has not released an opinion that negatively impacts the LGBTQ+ community as a whole.
6 Anne B. Goldstein, History, Homosexuality, and Political Values: Searching for the Hidden Determinants of Bowers v. Hardwick, 97 Yᴀʟᴇ L.J. 1073 (1988).
7 In Griswold, the Court struck down a Connecticut law that prohibited the use of contraception because it violated the “marital right to privacy.” Seven years later, in Eisenstadt v. Baird (1972), the Court expanded its interpretation of privacy by ruling that a person could not be criminally prosecuted for providing contraceptives or contraception information to unmarried persons.
8 Griswold v. Connecticut and the Right to Contraceptives, FɪɴᴅLᴀᴡ (Oct. 30, 2019), family.findlaw.com/reproductive-rights/griswold-v-connecticut-and-the-right-to- contraceptives.html.
9 Bowers v. Hardwick, 478 U.S. 186, 190 (1986).
10 Id. at 191.
11 Mary C. Dunlap, Gay Men and Lesbians Down by Law in the 1990's USA: The Continuing Toll of Bowers v. Hardwick, 24 Gᴏʟᴅᴇɴ Gᴀᴛᴇ U. L. Rᴇᴠ. 1, 5 (1994).
12 Pᴇᴛᴇʀ H. Iʀᴏɴs, Tʜᴇ Cᴏᴜʀᴀɢᴇ ᴏғ Tʜᴇɪʀ Cᴏɴᴠɪᴄᴛɪᴏɴs 438 (Reprint ed., Simon & Schuster 2016) (1988).
13 Romer v. Evans, 517 U.S. 620, 635 (1996).
14 Lawrence v. Texas, 539 U.S. 558, 567 (2003).
15 Id. at 559.
16 Supra note 2.
17 Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
18 Id. at 2611.
19 Emily Kazyak & Mathew Stange, Backlash or a Positive Response?: Public Opinion of LGB Issues After Obergefell v. Hodges, 65 J. ᴏꜰ Hᴏᴍᴏsᴇxᴜᴀʟɪᴛʏ 2028 (2018).