The Role of the Supreme Court in Shaping the Gay Rights Movement

The history of gay rights in the United States is a long and complicated one, one that has touched all spheres of life in this country. Historically, gay rights activists fought for equal protection and due process under the law, a battle that, even though the issues have changed, is still being fought today. The 20^th century saw the formation of a homosexual identity and a gay subculture. Law, religion, and, in the early part of the century, the medical profession criminalized, demonized, and degraded homosexual individuals. Today, citizens, lawyers, and congressmen are fighting for same-sex marriage and the right to serve openly in the military. Who will guide us in becoming a nation accepting of the LGBT community? Will it be the people or the Courts? The attitude of the public towards homosexuals is important to consider with issues of gay rights, but great power also lies with the Supreme Court’s precedent on the right to privacy, and how it applies the due process and equal protection clause.

In 1986, the Supreme Court, in a 5-4 decision, upheld the constitutionality of a Georgia Sodomy Law that criminalized oral and anal sex as applied to consenting, homosexual adults. The Supreme Court greatly exceeded its authority in deciding the case of Bowers v. Hardwick in multiple ways. The issue presented before the Supreme Court was the right to privacy, which the Court had ruled implicit in the due process clause in cases like Griswold v. Connecticut, Loving v. Virginia, Skinner v. Oklahoma, and Roe v. Wade. The Court reframed the case by making a ruling on the constitutionality of homosexual sodomy, while ignoring precedent and without a ruling from the lower courts. The restructuring of the case is even more puzzling because the Georgia Statute being challenged included heterosexual sodomy. The way the justices handled the case and the content of the majority opinion, where Justice White called Hardwick’s request for protection under the Constitution, “facetious,” suggests that the justices in the majority took issue with homosexual activity. Making decisions based on negative attitudes towards homosexual activity is reasonable for a private citizen, but not for a justice of the Supreme Court.

The Supreme Court is the highest court in the United States, but a great majority of the citizenry does not realize its power and influence. The Bowers decision fueled the fire of both gay rights activists and opponents of gay rights. Many states repealed their sodomy laws in the years that followed Bowers, but the decision was also used to deny gay people certain rights, like the custody of their children. After Bowers, sodomy laws were rarely enforced in matters of private, consensual homosexual activity, but laws on the books in many states still classified homosexuals as criminals. The questionable decision made by five justices, based more on emotional and personal preference than the rule of law, endorsed the criminal status of homosexuals.

In the past decade, many states have legally recognized civil unions between same-sex couples, and five states plus the District of Columbia have legalized same-sex marriage. According to multiple public opinion polls (CNN, Gallup, Pew, Associated Press), the number of people in favor of same-sex marriage has increased within the past decade. While the Supreme Court does not make decisions based on public opinion, the more tolerant and diverse atmosphere in the Court and in the nation was almost impossible to ignore in 2003, as evidenced in the Lawrence v. Texas decision. In a 6-3 decisions, the Court held that private, consensual sex between same-sex adults was protected under the Constitution, and that Bowers should be struck down. As conservative as the three justices in the minority were, Justices Rehnquist, Scalia, and Thomas came up with minimal support for the Texas sodomy law. The ruling in Lawrence invalidated sodomy laws in all states as they applied to homosexuals and heterosexuals, but more importantly the ruling revoked homosexual individuals’ criminal status.

Who knows best, the people or the courts? The problem with leaving issues of civil rights up the to public is that there are always at least two different opinions. The Supreme Court essentially gives only one answer. Of course, the opinion of the public matters in shaping national attitudes, but it is ultimately up to the courts to make the final decisions. When considering Bowers, it is clear that the Supreme Court has endorsed injustice, but it has also played a role in creating a more accepting nation. Loving v. Virginia (1967) was decided at a time when most Americans were against interracial marriage, but the ruling helped to change those opinions. The people of California have spoken out against same-sex marriage, but is it right to allow one group of people to decide the fate of another group of people? The Supreme Court holds a great deal of power in our country, and while it is sometimes troubling the think about the magnitude of its influence on everyday life, we live our lives by the decisions the Supreme Court makes.