“The nature of injustice is that we may not always see it in our own times”

Three Supreme Court cases relating to LGBTQ rights were decided on June 26: Lawrence v. Texas in 2003, United States v. Windsor in 2013, and affirming Obergefell v. Hodges in 2015.

On June 26, 2003, the U.S. Supreme Court ruled in Lawrence v. Texas that gender-based sodomy laws are unconstitutional and affirmed a right to privacy.

Police were called after a weapons disturbance was reported at a home in Houston, Texas. They entered John Lawrence’s apartment and reported seeing him and another man, Tyron Gardner in the bedroom engaged in sexual activity. They were arrested and charged under the “Homosexual Conduct,” which made it a Class C misdemeanor for “a person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.”

The Supreme Court overturned its decision in Bowers v. Hardwick (1986), a similar case where Michael Hardwick was arrested by Georgia police for engaging in a consensual sex act. The Court had ruled that such laws “have ancient roots” and that “there was no constitutional protection for acts of sodomy, and that states could outlaw those practices.” In Lawrence, the Court ruled that the Texas statute “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” A key factor in the decision was that, “the sexual acts happened inside a private residence, where the state and law enforcement had no right to dictate individual behavior in these deeply personal matters.”State v. Limon

The Court’s ruling was used in State v. Limon to amend Kansas’s “Romeo and Juliet” laws, which penalizes teens younger than 19 who engage in “voluntary sexual intercourse, sodomy or lewd touching with a teen between the ages of 14 and 16, provided the teens are of the opposite sex” but if the teens are of the same gender, they are penalized under the state’s criminal sodomy statute, which “prohibits sodomy with a child between 14 and 16 years of age, without regard to consent, the offender’s age, or the gender of the participants.” The Kansas Supreme Court ruled that, “the Romeo and Juliet law, which effectively mandates a substantially higher sentence for the same acts, based on whether the defendant is of the same sex as the victim, is a violation of the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution referenced in the Lawrence decision.”

Ten years later, on June 26, 2013, the Supreme Court ruled in United States v. Windsor that Section 3 of the Defense of Marriage Act was unconstitutional and violated the Fifth Amendment to the United States Constitution.

The Defense of Marriage Act (DOMA), enacted in 1996, states that, under federal law, the words “marriage” and “spouse” refer to legal unions between one man and one woman. Edith Windsor and Thea Clara Spyer were married in Toronto, Canada in 2007.and their marriage was recognized under New York law. When Spyer died in 2009, Spyer left her estate to Windsor. But, as their marriage was not recognized by federal law, the government imposed a $363,000 tax. If the federal government had recognized the marriage, there would not have been any taxes imposed as the estate would have qualified for a marital exemption.

On November 9, 2010, Windsor filed suit in district court, to declare DOMA unconstitutional. When the suit was filed, the government stipulated that DOMA must be defended, but the President and the Attorney General declined to do so. The Bipartisan Legal Advisory Group of the House of Representatives filed a petition to intervene and defend DOMA and also a motion to dismiss the case. The district court denied the motion and held DOMA unconstitutional.

The Supreme Court ruled that “states have the authority to define marital relationships and that DOMA goes against legislative and historical precedent by undermining that authority.” DOMA “denies same-sex couples the rights that come from federal recognition of marriage, which are available to other couples with legal marriages under state law.” Therefore, “the purpose and effect of DOMA is to impose a “disadvantage, a separate status, and so a stigma” on same-sex couples in violation of the Fifth Amendment’s guarantee of equal protection.”

Two years later, the Supreme Court would come to a different conclusion. In Obergefell v. Hodges, groups of same-sex couples in Ohio, Michigan, Kentucky, and Tennessee challenging the constitutionality of bans on same-sex marriage. The plaintiffs argued that the bans violated the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment, and in one case, the Civil Rights Act. In all cases, the trial court found for the plaintiffs, but the Court of Appeals for the Sixth Circuit reversed and held that the states’ bans did not violate the Fourteenth Amendment, equal protection, and due process. The cases converged into Obergefell v. Hodges and went to the Supreme Court.

The Supreme Court considered three questions: 1. Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?; and 2. Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex that was legally licensed and performed in another state? Citing cases such as Loving v. Virginia (1967), which overturned anti-miscegenation laws, the Court concluded that the Fourteenth Amendment the “Due Process Clause of the Fourteenth Amendment guarantees the right to marry as one of the fundamental liberties it protects, and that analysis applies to same-sex couples in the same manner as it does to opposite-sex couples.” Preventing same-sex couples from marrying also violates the Equal Protection Clause, but also ruled that the “First Amendment protects the rights of religious organizations to adhere to their principles, but it does not allow states to deny same-sex couples the right to marry on the same terms as those for opposite-sex couples.”

As with the Supreme Court ruling in Loving v. Virginia, where some states refused to comply and kept such laws on their books (Alabama became the last state to repeal its law in 2000), seven counties in Alabama refused to issue marriage licenses to same-sex couples, two years later. As of early 2019, those seven counties were still not issuing marriage licenses to same-sex couples, prompting the Alabama legislature to abolish all marriage licenses and replacing them with affidavits.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s