On April 22, I delivered the University of Chicago’s annual Nora and Edward L. Ryerson Lecture on the subject of same-sex marriage. Because the Supreme Court will hear arguments on this issue on Tuesday, I thought I would post the core of the lecture here. It quite a bit longer than the usual Huffington post, so I apologize for that.
In August 1982, an Atlanta police officer went to the home of Michael Hardwick to serve an arrest warrant for public drinking. Upon entering the home, the officer observed Hardwick and another man engaged in oral sex. The officer placed both men under arrest for the crime of sodomy.
In Bowers v. Hardwick, decided in 1986, the Supreme Court held that Georgia’s prohibition of homosexual sodomy was not unconstitutional. Noting that the Constitution says nothing about a right to commit sodomy, and that proscriptions against homosexuality “have ancient roots,” Justice Byron White, who wrote the majority opinion, concluded that, to claim that the Constitution protects “a right to engage in such conduct … is, at best, facetious.”
In a concurring opinion, Chief Justice Warren Burger added that condemnation of homosexual conduct “is firmly rooted in Judeo-Christian moral and ethical standards” and that “to hold that the act of homosexual sodomy” was somehow protected by the Constitution “would be to cast aside millennia of moral teaching.”
Justice Harry Blackmun, joined by Justices Brennan, Marshall, and Stevens, dissented. Although conceding that “traditional Judeo-Christian values” had proscribed homosexual intimacy for hundreds, if not thousands, of years, Blackmun insisted that that fact “cannot provide an adequate justification” in itself for the Georgia law. “That certain … religious groups condemn the behavior at issue,” he reasoned, “gives the State no license to impose their judgments on the entire citizenry.” To the contrary, “the legitimacy of secular legislation” depends on “whether the State can advance some justification for its law beyond its conformity to religious doctrine.” Finding no such justification, Blackmun concluded that the Georgia statute could not be reconciled with the United States Constitution.
That, however, was a dissenting position.
The Court’s invocation of moral and religious proscriptions against homosexuality played a central role in the justices’ reasoning in Bowers, and it is therefore useful to have some understanding of that history. Let’s take a look at the “ancient roots” Justice White invoked.
The pre-Christian world generally thought of sex as a positive part of human nature. It did not see sex as bound up with questions of sin or religion. The ancient Greeks, for example, focused, not on sexual “sin,” but on whether an individual’s conduct was harmful to others. This extended even to homosexuality. Indeed, a common feature of classical Greek sexual life was that adult men often had sexual relationships with adolescent boys. This might seem strange to us, but Greek poetry, history and literature celebrated such relationships and identified them with love, honesty, integrity, honor, and courage. Similarly, although Roman sexual life was different from that of the Greeks, the Romans too celebrated sexual pleasure and neither Roman religion nor Roman law condemned same-sex sex.
The emergence of Christianity, however, produced a profound change in the prevailing understandings of sex generally. By the end of the fifth century, Christianity had come to condemn sexual desire as inherently shameful and as an evil temptation that must be suppressed. This shift occurred over the course of several centuries, but it was Augustine who finally crystallized the early Christian understanding of sex. In a critical leap, Augustine linked sexual desire to the Fall of man. Adam’s transgression, he argued, had not been one of disobedience, as the ancient Hebrews had believed, but one of sex.
Augustine therefore maintained that every sexual desire is born out of evil, that every child born out of evil is born into sin, and that it is through sex that man passes on the original sin from one generation to the next. Augustine therefore concluded that man’s only hope for redemption lay in repudiating the sexual impulse and, with it, the burden of sin and shame inherited from Adam. Augustine’s vision ultimately shaped the future, not only of Christianity, but of Western culture and law, more generally.
During the next thousand years, Christian dogma, backed by the threat of hellfire and damnation, attained not only religious, but social, political, and legal authority. The sin of “sodomy” came to be seen as uniquely dire, for as the biblical story of Sodom had taught, for this particular sin God will punish not only the sinners, but also those who fail to prevent the sin.
It was still unclear, though, precisely what acts constituted “sodomy.” It was Thomas Aquinas who, in the 13th century, first drew a sharp distinction between opposite-sex and same-sex “unnatural” acts. Although oral or anal sex with a person of the opposite sex was deemed a vice against nature, such acts with a person of the same sex, he concluded, constituted the worst form of sodomy. Before long, Thomas’s thinking on this point became the dominant authority in Christian doctrine.
At roughly the same time, and not coincidentally, same-sex sex came for the first time to be declared, not only a sin, but a crime. That is, the Church for the first time conscripted the secular law to extend its prohibition on same-sex sex not only to those who shared the faith, but to everyone, regardless of their personal religious beliefs. Criminal statutes against same-sex sex were thus enacted throughout Europe, and because of the heinous nature of this crime, these laws called for homosexuals to be castrated, dismembered, burned at the stake, drowned, hanged, stoned to death, decapitated, or buried alive. In short, homosexuals for the first time became the object of a systematic program of extermination.
Although the Reformation brought about significant changes in the Protestant attitude towards sex, those changes did not extend to homosexuality. To the contrary, Protestant reformers reaffirmed in no uncertain terms the traditional condemnation of homosexuality as a “detestable and abominable sin.” In the American colonies, for example, the Puritans declared that sodomy must be punished “with death, without mercy,” and warned that the “Land cannot be cleansed until it hath spued out this Unclean Beast.”
By the time of the American Revolution, the colonies, under the influence of the Enlightenment, had stopped using the criminal law to prosecute most forms of consensual sex — except for the crime of sodomy, which remained a capital offense. Indeed, sodomy remained a serious felony in every state in the nation for the next two hundred years.
Throughout all of this history, until the late 19th-century, it was generally assumed that individuals who chose to engage in same-sex sex were no different than other individuals who chose to engage in other types of criminal or sinful behavior. Engaging in homosexual sex, like engaging in robbery, was simply a choice.
This assumption began to be questioned, however, in the late 19h-century, as medical authorities became interested in the issue. For the first time, persons drawn to same-sex sex began to be seen as individuals possessed of a distinctive psychological identity. It was in this era that the concept of the “homosexual” first came into being.
Leading studies of homosexuality in the late 19th century posited that homosexuality was a pathology and that persons afflicted with this pathology were “strange freaks of nature.” Among the questions debated were whether the inclination to engage in homosexual conduct was congenital or acquired, whether it was curable or incurable, and whether it should be accepted as an unavoidable condition or actively resisted and suppressed.
Physicians in this era proposed a broad range of “remedies” for homosexuality, including hypnosis, psychoanalysis, sex with prostitutes, intense bicycle riding, rectal massage, burning the neck and lower back with hot irons or chemicals, electric stimulation, castration, and clitorectomy. Many doctors recommended the sterilization of homosexuals in order to prevent the condition from being passed on to the next generation, and by 1938, 32 states had enacted compulsory sterilization laws aimed at homosexuals.
Also in the 1930s, the image of the homosexual took on an increasingly sinister cast. A growing public anxiety over sex crimes recast the dominant image of homosexuals as dangerous psychopaths who were naturally inclined to commit the most unspeakable crimes. Demonized not only as perverts, but now as child molesters as well, “homosexuals became the new enemy of the people,” and arrests for sodomy increased dramatically percent in the 1930s.
During World War II, the United States for the first time attempted to prevent homosexual men and women from entering the military, and those who were discovered in the military were discharged in proceedings that often left them branded for life.
With the advent of the Cold War, things got even worse. Fearful of domestic subversion, Americans turned with a vengeance against homosexuals. The conflation of “Communists and queers” seemed only logical, for Americans viewed communism as atheistic, un-Christian, immoral and degenerate. As one congressman asserted in 1950, “the Russians are strong believers in homosexuality.” Red-baiting journalists warned that “Communists are now converting American youth to homosexuality to defeat us from within,” and Senator Kenneth Wherry of Nebraska, the Republican floor leader, declared that “You can’t hardly separate homosexuals from subversives.”
By 1950, the “Lavender Scare,” as it came to be called, was well underway. Government agencies began using lie detectors to determine whether their employees were homosexuals, the FBI compiled lists of suspected homosexuals from local vice-squads, and President Eisenhower issued an Executive Order officially declaring “sexual perversion” a serious security risk.
In light of the intensity of the anti-homosexual fever that gripped the nation during the Lavender Scare, gays and lesbians found themselves increasingly isolated. In a society in which the dominant religion excoriated homosexuality as a heinous sin, the law branded it a vicious crime, and the medical profession diagnosed homosexuals as diseased, the vast majority of individuals who harbored homosexual impulses did their best to hide their secret shame from family, friends, neighbors, employers, and associates. The terrible fear of discovery kept the secret lives of most homosexuals invisible, even to one another.
Indeed, even civil rights groups turned their backs on gays and lesbians in this era. In 1957, for example, the national board of the American Civil Liberties Union declared that “it is not within the province of the [ACLU] to question the validity of laws aimed at the suppression or elimination of homosexuals.”
By the late 1960s, though, inspired by the civil rights and women’s rights movements, a handful of courageous gay men and lesbians began calling openly for the acceptance of homosexuals “as full equals” in society. In 1969, for example, Carl Wittman, a gay SDS leader, penned what he termed The Gay Manifesto, in which he declared: “Our first job is to clear our own heads of the garbage that’s been poured into them…. Liberation for gay people is defining for ourselves who we are. It is time for us to come out.”
This was the first time anyone had used the term “come out” in this manner. For those who sought equal rights for gays and lesbians, “coming out” was a radical and daring act that would affect every aspect of their lives. Indeed, as late as 1969, only a few hundred members of the growing gay rights organizations in the United States had publicly identified themselves as homosexuals. This was about to change.
At around 1:00 a.m. on the night of Friday, June 27, 1969, the New York police raided the Stonewall Inn, a dingy, Mafia-owned gay bar on Christopher Street in Greenwich Village. Five other New York bars had been raided in the previous three weeks, but this time the drag queens, bar boys, and lesbians who had either been in the bar or in the gathering crowd outside resisted the police harassment. The next night, hundreds of gay men and women gathered on Christopher Street, leading to yet another confrontation with the police, an event that generated national attention. A year later, thousands of people commemorated the anniversary of Stonewall by marching in New York City, Chicago and Los Angeles in the nation’s first Gay Pride parades.
The decade after Stonewall saw gradual, but halting, progress in the cause of gay rights. In 1972, a lesbian was allowed to retain custody of her children in a contested divorce for the first time in American history. In 1973, the American Psychiatric Association declared for the first time that homosexuality was not a mental illness. And by the end of the decade, 22 states, adopting the recommendation of the American Law Institute, had repealed their laws making consensual sodomy a crime. Illinois, by the way, was the first state in the nation to do this.
These developments sparked a sharp backlash, however. The most dramatic explosion arose over a proposed gay rights ordinance in Dade County, Florida. In 1977, the county commission, following the lead of several other cities, passed an ordinance prohibiting employment discrimination on the basis of sexual orientation. Local religious groups were outraged, and demanded an immediate repeal of the ordinance. Local Baptists charged that the law violated God’s biblical commandments, and the National Association of Evangelicals soon entered the fray. Leaders of the Christian Right, including Jerry Falwell, Pat Robertson, and Jim and Tammy Baker, came to Miami to campaign in favor of repeal, and in a special referendum, Dade County’s voters repealed the ordinance by an overwhelming margin.
This victory generated momentum for a new, religion-based, anti-gay movement. The campaign took on an ugly tone as bumper stickers appeared across the nation with such messages as “Kill a Queer for Christ.” Within two years, many of the laws that had been enacted in other cities to protect gays from discrimination were also repealed. The Christian Right charged that such laws promoted “child molesting” and “gay recruiting,” and the Rev. Jerry Falwell raged that “Homosexuals do not reproduce! They recruit! And, many of them are after your children.” The anti-gay rights crusade saw this fight as a religious battle for the Christian soul of America.
Soon thereafter AIDS struck the gay community with a vengeance. As the disease became associated in the public mind with homosexuality, the Christian Right deemed AIDS God’s punishment for homosexual sodomy. The Reagan administration, which had actively courted the Christian Right, had no interest in devoting “government time or money” to an illness that was thought to threaten only gay men. Rather than invest federal funds in medical research, the White House instructed the Center for Disease Control to “look pretty and do as little as we can.” Over the course of the next decade, AIDS ravaged the homosexual community, killing more than a quarter-of-a-million gay men and leaving hundreds of thousands more to wonder if they might be next.
Ironically, though, the horror of AIDS brought homosexuality into the light. As thousands of gay men died horrible deaths, people had to take notice — often, though not always, with sympathy and concern. Gradually, one person at a time, in often awkward and sometimes excruciatingly painful conversations with family, friends, and acquaintances, the previously closeted lives of homosexuals became visible, first out of necessity and desperation, then later out of candor and self-respect.
“Gay invisibility” was suddenly melting away. At the Gay and Lesbian March on Washington in 1993, hundreds of thousands of individuals wearing pink triangles marched proudly past the White House. Four years later, Ellen DeGeneres, star of the popular ABC television show Ellen, came out as a lesbian. Shortly thereafter, some forty-two million viewers tuned in to watch DeGeneres’ character, Ellen Morgan, reveal that she, too, was a lesbian.
Not everyone cheered. The response of the Christian Right was fierce. The Rev. Jerry Falwell called Ellen DeGeneres “Ellen DeGenerate,” and the Southern Baptist Convention called for a boycott of ABC because it had broadcast the show. In the view of the Christian Right, homosexual perversion, immorality, and degeneracy were being spewed across the land. Donald Wildmon, the president of the American Family Association, railed that homosexuality was “a sin grievous to God and repulsive to Christians.” This struggle, he declared, was a matter of life and death, because if we fail, “we fear the judgment of God on our nation.”
The battle lines had clearly been drawn.
This brings me back to the Supreme Court. As we saw earlier, in its first encounter with homosexuality the Court held in Bowers v. Hardwick that a state could constitutionally make homosexual conduct a criminal offense. The Court explained that, given the history of religious and moral condemnation of homosexuality, any suggestion that the Constitution could be interpreted as protecting such behavior was, “at best, facetious.”
The Court’s second foray into this arena was Romer v. Evans, which was decided in 1996, exactly a decade after Bowers. As I noted earlier, beginning in the late 1970s several cities enacted ordinances prohibiting discrimination on the basis of sexual orientation. As in Dade County, however, this generated a sharp response from the Christian Right, which usually succeeded in getting those laws repealed.
In Colorado, after Denver enacted an anti-discrimination ordinance in 1991, a coalition of Christian Right organizations launched an aggressive campaign to amend the Colorado constitution to override the ordinance. Amendment 2, which was adopted in a statewide referendum, provided that neither the State of Colorado, nor any of its subdivisions, could enact any law that protected homosexuals against discrimination. Nine days later, lawyers from Lambda Legal and the American Civil Liberties Union, which had changed its tune, filed suit claiming that Amendment 2 violated the United States Constitution.
In light of Bowers, it seemed clear that the Supreme Court would reject the challenge, but in a stunning six-to-three decision the Court held Amendment 2 unconstitutional. Justice Anthony Kennedy, who had been appointed to the Court by President Ronald Reagan, authored the Court’s opinion.
In Kennedy’s view, the problem with Amendment 2 was that it imposed “a special disability” only upon homosexuals. This was so because, under Amendment 2, every group in Colorado was free to try to persuade a city council, a state university, or the state legislature to enact regulations protecting them against discrimination — except homosexuals. Because of Amendment 2, only homosexuals would have to amend the state Constitution before they could obtain “protection against discrimination.”
With that fact in mind, Kennedy turned to the Equal Protection Clause of the Fourteenth Amendment, which provides that “no state shall … deny to any person the equal protection of the laws.” Under that guarantee, if a law treats some people differently than others, it ordinarily will satisfy the demands of equal protection if “it bears even a rational relation to some legitimate end.” Although almost every law passes that highly deferential standard, Justice Kennedy concluded that Amendment 2 did not.
This was so, he reasoned, because “a law declaring that … it shall be more difficult for one group of citizens than for all others to seek aid from the government” was virtually “unprecedented” in American history, and it was therefore impossible to escape the inference, he explained, that the “disadvantage imposed” on homosexuals by Amendment 2 was the result, not of any rational effort to further a legitimate state interest, but “of animosity toward the class of persons affected.” Because a bare desire to harm a politically unpopular group cannot constitute a legitimate government interest, Kennedy concluded that Amendment 2 violated the Equal Protection Clause.
Justice Antonin Scalia, joined by Chief Justice Rehnquist and Justice Clarence Thomas, was of a rather different view. Scalia maintained that Amendment 2 “is not the manifestation of a ‘”bare … desire to harm”‘ homosexuals, but is rather a rational and perfectly legitimate attempt by Coloradans to “preserve traditional sexual mores.” He castigated Justice Kennedy’s reasoning as utterly disingenuous.
The Supreme Court’s third decision involving the rights of homosexuals, Lawrence v. Texas, was pretty much a re-run of Bowers v. Hardwick. Police officers in Houston were dispatched to a private residence in response to a reported disturbance. After they entered the residence, they saw two men engaging in anal sex. The men were arrested, charged, and convicted of violating a Texas statute making it a crime for any person to engage “in deviate sexual intercourse with another individual of the same sex.”
Since 1982, Bowers v. Hardwick had been used by politicians, legislators, and judges to justify discrimination against gays and lesbians in deportation hearings, adoption proceedings, military discharges, employment discrimination, and a host of other contexts. After all, if homosexual conduct is criminal, than a homosexual is no different than a rapist, a robber, or a thief.
Much had changed, however, in the seventeen years between Bowers and Lawrence. Not only had AIDS devastated the gay community and changed the public’s perception of homosexuality, but sixty percent of Americans now thought that homosexual sex should no longer be deemed a criminal offense.
In a six-to-three decision, the Supreme Court overruled Bowers and held the Texas statute unconstitutional. Justice Kennedy again delivered the opinion of the Court. Kennedy maintained that the Court’s reasoning in Bowers v. Hardwick had been distorted by its “failure to appreciate the extent of the liberty at stake” in such deeply personal relationships.
Although conceding that the Framers of the Constitution had not expressly guaranteed the right to engage in homosexual sex, Kennedy explained that the Framers had intentionally left some constitutional guarantees open-ended because “they knew” that “later generations can see that laws once thought proper in fact serve only to oppress.” That, Kennedy maintained, was the situation in Lawrence. There was, he concluded, no constitutionally legitimate justification for making same-sex sex a crime.
Justice Scalia, joined once again by Rehnquist and Thomas, dissented. Scalia accused the Court of signing on to what he termed the “homosexual agenda,” and he fumed that the Court had no business invalidating legislation that had been legitimately enacted by the citizens of Texas.
Echoing Justice Scalia’s outrage, religious conservatives throughout the nation were livid. Pat Robertson denounced the Court for rending the “moral fabric of the nation,” Jerry Falwell warned that Lawrence would lead to bestiality, and a pastor in Kansas fumed that it marked “the death knell of American civilization.”
When it came time for Justice Kennedy to announce the judgment of the Court in Lawrence, he read a brief statement explaining the result from the bench. The Supreme Court chamber was, of course, packed. At the end he declared: “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be, and now is, overruled.”
It was a remarkable moment. Overwhelmed by what was happening, many of the gay and lesbian advocates sitting in the gallery sobbed openly. For the gay and lesbian community it was an occasion for dancing in the streets. Joyous demonstrations erupted in cities across the nation.
For gays in America, Lawrence meant much more than that rarely-enforced anti-sodomy laws could no longer be legally enforced. Rather, Lawrence meant that never again would their rights be dismissed by the highest tribunal in the land as, “at best, facetious,” and never again would they wonder whether the words engraved on the pediment of the Supreme Court building, “Equal Justice Under Law,” included them. The Constitution was now their constitution, too.
In San Francisco, a group of veterans who had been expelled from military service during World War II because of their sexual orientation proudly saluted as a huge Rainbow Flag, which had flown atop an eighty-foot pole for more than five years, was lowered and an American flag for the first time was raised in its place.
For most of American history, the notion that a man could marry a man, or a woman could marry a woman, seemed utterly absurd. In 1990, however, only four years after Bowers v. Hardwick, three gay couples in Hawaii applied for marriage licenses, which were of course denied. Audaciously, they then filed suit in state court claiming that the state’s refusal to allow same-sex couples to marry violated the Hawaii constitution. To pretty much everyone’s surprise, the Hawaii Supreme Court ruled in 1993 that the state’s law restricting marriage to a man and a woman might violate the Hawaii constitution.
This decision provoked a furious response from the Christian Right, and almost immediately states across the nation rushed to amend their state constitutions explicitly to define marriage as involving one man and one woman. The goal of these amendments was both to prevent their own state courts from following the Hawaii Supreme Court’s suggestion, and to make it impossible for future majorities in the state, should they emerge, to legalize same-sex marriage by enacting legislation to that effect.
These issues played out at the national level, as well. As the 1996 election approached, the anti-gay rhetoric was virulent. Dick Armey, the Republican whip in the House, publicly referred to congressman Barney Frank as “Barney Fag,” six of the seven Republican presidential candidates vehemently condemned the idea of same-sex marriage, and Republican Speaker of the House Newt Gingrich proposed the “Defense of Marriage Act,” or DOMA, which provided, among other things, that if any state recognized marriages between persons of the same sex, persons entering into such marriages would be ineligible for the multitude of federal benefits that were otherwise available to married couples.
The hearings on DOMA were “openly homophobic.” Members of Congress described gays and lesbians “as sick, perverted, and dangerous,” charged that the nation was facing a dangerous “attack upon God’s principles,” and warned that “the flames of hedonism … are licking at the foundations of our society.”
Congress quickly enacted the legislation, and with a presidential election just around the corner, and, with the American people opposed to same-sex marriage by a margin of sixty-eight to twenty-seven percent, President Bill Clinton signed DOMA into law. Of course, none of this really mattered at the time, because same-sex marriage was not legal in any state in the nation.
Seven years later, though, in 2003, the Massachusetts Supreme Court held that laws denying same-sex couples the freedom to marry violated the Massachusetts constitution. Massachusetts thus became the first state in the nation to legalize same-sex marriage. In response, 13 additional states promptly amended their state constitutions to forbid same-sex marriage.
Several years later, though, the state supreme courts of Connecticut, California, and Iowa followed Massachusetts’ lead and held that their state constitutions also guaranteed same-sex couples the right to marry. Moreover, in 2009, Vermont became the first state in the nation to enact same-sex marriage by legislation. Shortly thereafter, New Hampshire and Maine followed suit.
The pushback, again, was furious. In Maine and California, for example, the Christian Right launched vigorous – and successful — campaigns to amend their state constitutions to outlaw same-sex marriage, and voters in Iowa, spurred on by the Moral Majority, voted out of office three of the state supreme court justices who had voted to recognize a state constitutional right to same-sex marriage. As the executive director of the American Family Association warned, if any judge attempts “to impose … an amoral agenda, we’re going to take [you] out.”
Thus, despite several seemingly landmark victories, the movement for same-sex marriage had stalled. DOMA remained the law nationally, most efforts to legalize same-sex marriage had been overturned, and by 2013 more than thirty states had enacted state constitutional amendments expressly outlawing same-sex marriage.
This brings me to the Supreme Court’s fourth and most recent decision in our story – United States v. Windsor. Edith Windsor and Thea Spyer met in New York City in 1963 and began a long-term relationship. In 2007, they were married in Ontario, Canada, and New York law recognized the validity of their marriage. Two years later, Spyer died, leaving her estate to Windsor. When Windsor sought to claim the federal estate tax exemption for surviving spouses, she was barred from doing so by section 3 of DOMA, which expressly provided that no provision of federal law could recognize as lawful any marriage other than those between a man and a woman. Windsor then filed suit, challenging the constitutionality of section 3.
In a bitterly-divided five-to-four decision, the Supreme Court invalidated section 3 of DOMA on June 26, 2013 – ten years to the day after its decision in Lawrence. As in Romer and Lawrence, Justice Kennedy authored the opinion of the Court. He was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Chief Justice Roberts and Justices Scalia, Thomas, and Alito dissented.
In his opinion for the Court, Justice Kennedy explained that the issue presented was not whether states were constitutionally obligated to recognize same-sex marriage, but whether the federal government could constitutionally discriminate against couples who were legally married in a state because those individuals happened to be of the same sex.
In approaching this question, Kennedy emphasized that “by history and tradition the definition and regulation of marriage has been treated as being within the authority of the separate States.” A state’s decision to give same-sex couples “the right to marry,” he noted, “conferred upon them a dignity and status of immense import.” Although acknowledging that “Congress, in enacting discrete statutes, can make determinations that bear on marital rights and privileges,” Kennedy characterized DOMA as unprecedented because it applied “to over 1,000 federal statutes and the whole realm of federal regulations.”
Thus, like Colorado’s Amendment 2, which had been invalidated in Romer, Kennedy maintained that a central purpose of DOMA was to undermine “the equal dignity” of gays and lesbians. Indeed, DOMA’s “principal effect,” he maintained, “is to identify a subset of state-sanctioned marriages and make them unequal.” “By creating two contradictory marriage regimes within the same State,” DOMA, he reasoned, “places same-sex couples” in the “position of being in a second-tier marriage,” a discrimination that “demeans the couple” and “humiliates tens of thousands of children now being raised by same-sex couples.” Because no legitimate federal interest justified what he described as “the purpose and effect” of disparaging “those whom the State sought to protect,” Kennedy concluded that DOMA violated the Constitution.
In a furious dissenting opinion, Justice Scalia characterized the Court’s reasoning as nothing short of “remarkable.” At various points, Scalia dismissed Kennedy’s analysis as “perplexing,” “confusing,” “absurd,” “overcooked,” and “legalistic argle-bargle.” Scalia reiterated what he had insisted upon in Lawrence: “The Constitution does not forbid the government to enforce traditional moral and sexual norms.” That, in itself, he maintained, is sufficient justification for the federal government’s decision not to recognize same-sex marriages.
Scalia angrily predicted that Windsor would lead to recognition of a constitutional right to same-sex marriage. He charged that if the Court believed that DOMA was the product of unconstitutional animus against homosexuals, then surely it would make the same assertion about state laws limiting marriage to one man and one woman. “As far as this Court is concerned, he fumed, “no one should be fooled; it is just a matter of … waiting for the other shoe.”
It is striking how far the Court had moved in the twenty-seven years from Bowers to Windsor. This was due to several factors, one of which was not an overall move of the Court in a more “liberal” direction. To the contrary, on a broad range of issues, including affirmative action, campaign finance, gun control, and voting rights, the Court, with the additions of Justices Scalia, Kennedy, Thomas, Roberts, and Alito, had grown, if anything, notably more “conservative” than the Court at the time of Bowers.
What had changed in those years was the public awareness of gays and lesbians in society and the public and legal understanding of both the morality and wisdom of laws discriminating on the basis of sexual orientation. Indeed, public opinion on these issues had shifted dramatically between Bowers and Windsor. In 1986, no one even bothered to poll on the question of same-sex marriage. It wasn’t until 1996 that Gallup finally thought to ask people about same-sex marriage. At that time, only 27 percent of Americans thought same-sex marriage should be legal. By 2013, fifty-four percent of Americans shared that view.
This shift was due to many factors, but most important was the profound change in the visibility of gays and lesbians in American society. This transformation affected not only everyday citizens, but also legislators, mayors, governors, presidents, and judges. With these changes, the traditional judicial understandings of such fundamental legal concepts as liberty, equality, and due process — as applied to homosexuals — were suddenly called into question, and rightly so.
It is important to note, though, that these changes in public attitudes and understandings did not in themselves dictate any particular change in constitutional doctrine. Bowers and Windsor were both five-to-four decisions. Only one vote had “changed” over the course of those twenty-seven years. Had Robert Bork been confirmed, and Anthony Kennedy therefore never been appointed to the Court, the outcome in Windsor almost surely would have been five-to-four the other way.
Thus, the divergent outcomes in these cases were shaped by at least two critical factors: the general public understanding of homosexuality at the time of the decision, and the particular interpretative approaches and values of the individual justices who happened to be on the Court at the specific moment when the issues arose.
Since Windsor there has been a virtual avalanche of lower court decisions invalidating state laws denying same-sex couples the freedom to marry. Before Windsor, the vast majority of all courts and judges who addressed this issue held that laws limiting marriage to opposite-sex couples were constitutional. In the two years since Windsor, the overwhelming majority of courts and judges have held such laws unconstitutional. The shift has been sudden and it has been seismic.
The other shoe is about to fall.
In June, the Supreme Court will hand down its decision in Obergefell v. Hodges, which directly presents the question whether state laws that deny same-sex couples the freedom to marry violate the United States Constitution. It seems almost certain that at least five justices will now take this step and that Justice Anthony Kennedy will again write the opinion of the Court.
What is unknown is whether any of the other justices will join the decision, and what explanation the Court will give for its decision. The latter is especially intriguing, because despite Romer, Lawrence, and Windsor, it remains a bit of a mystery how the majority thinks about these questions. The central question is whether laws denying same-sex couples the freedom to marry violate the Equal Protection Clause of the Fourteenth Amendment. Those advocating this position have advanced three primary arguments in support of their view.
First, they argue that laws denying same-sex couples the freedom to marry are unconstitutional because they do not rationally further a legitimate state interest, that the real purpose of such laws is to denigrate and stigmatize a despised class of citizens, and that, like the laws invalidated in Romer, Lawrence, and Windsor, these laws therefore violate the Equal Protection Clause.
Those on the other side point out that the rational basis standard is a highly deferential one. They argue that there are, in fact, legitimate justifications for laws that limit marriage to one man and one women, including morality, tradition, promoting procreation, promoting family stability, and preserving respect for the institution of marriage.
Moreover, they argue that, even if the Court was right to find evidence of “animus” in Romer and Windsor because of the “unprecedented” nature of the laws at issue in those cases, no similar inference can logically be drawn with respect to the traditional understanding that marriage involves a relationship between a man and a woman. After all, they argue, when marriage was defined in this way many centuries ago, no one was thinking about homosexuals one way or the other. That being so, they reason, animus toward homosexuals has nothing at all to do with the traditional definition of marriage.
The second argument advanced by those challenging the constitutionality of laws denying same-sex couples the freedom to marry turns on the notion that the freedom to marry is itself a “fundamental interest.” In a series of decisions over the past century, the Supreme Court has held that a law that treats people differently with respect to a “fundamental” interest, such as the right to vote, the right not to be sterilized, or the freedom to use contraceptives, violates the Equal Protection Clause unless it satisfies something called “heightened scrutiny.” That is, when a law treats people differently with respect to a fundamental interest, the law is unconstitutional unless it substantially furthers an important government interest. A mere rational explanation is not sufficient.
Those who challenge the constitutionality of laws denying same-sex couples the freedom to marry maintain that such laws implicate the fundamental right to marry and that they therefore must pass heightened scrutiny review, a test that pretty much everyone agrees cannot be satisfied.
Those who defend the constitutionality of laws denying same-sex couples the freedom to marry respond that, even if the freedom to marry is fundamental, that applies only to opposite-sex couples. This is so, they argue, because for an interest to be recognized as “fundamental” it must be deeply rooted in “our Nation’s history, legal traditions, and practices.”
Although the right of opposite-sex couples to marry is clearly fundamental under that standard, they insist that there is no analogous fundamental right of same-sex couples to marry, because that practice can hardly be said to be deeply rooted in “our Nation’s history, legal traditions, and practices.”
In response, those arguing in favor of a fundamental right of same-sex couples to marry maintain that, just as the meaning of express constitutional rights, like the freedom of speech and the freedom from unreasonable searches and seizures, can evolve over time with changing circumstances, so too can the meaning of implied fundamental rights evolve over time.
The third argument of those challenging the constitutionality of laws denying same-sex couples the freedom to marry is that, because such laws discriminate on the basis of sexual orientation, they are analogous to laws that discriminate against individuals on the basis of race, national origin, gender, and similar characteristics, and therefore call forth heightened scrutiny under the Equal Protection Clause for that separate and distinct reason.
The Supreme Court has long held that laws discriminating against individuals on the basis of certain “suspect” criteria are especially problematic and are therefore unconstitutional unless they satisfy a more demanding standard of justification.
Because laws discriminating against African-Americans are the paradigm violation of the Equal Protection Clause, the Court generally considers four factors in determining whether discrimination against any particular group should be deemed “suspect”: whether the group has experienced a history of invidious discrimination; whether the defining characteristic of the group is essentially immutable; whether the group can effectively protect itself against discrimination through the political process; and whether the discrimination is based on stereotyped characteristics that are not truly indicative of the group’s ability to perform in society. Those who contest the constitutionality of laws discriminating against gays and lesbians maintain that such discrimination satisfies these criteria and therefore must be tested by heightened scrutiny.
In response, those who defend the constitutionality of laws discriminating against gays and lesbians maintain that homosexuality is a choice, that what homosexuals call a history of discrimination therefore is no different than a history of “discrimination” against any other group of individuals who choose to violate society’s moral norms and legal strictures, that gays and lesbians have ample political power, and that homosexuality is relevant to a host of legal considerations, most obviously to marriage. Thus, in their view, laws that “discriminate” against homosexuals are no different than laws that “discriminate” against people who commit incest, or burglary, assault, or bestiality. Such laws, they insist, are completely different constitutionally from laws that discriminate against African-Americans, women, Hispanics, or Japanese-Americans.
So what should the Court do? In my view, all three of these arguments would justify a decision invalidating laws forbidding same-sex marriage, and lower courts have invoked all them in one case or another. My preferred rationale is the third – that laws discriminating against gays and lesbians are constitutionally “suspect” in ways that are similar to laws that discriminate against blacks, Hispanics, women, and, to use the World War II example, persons of Japanese descent.
Gays and lesbians have been subjected to a long history of invidious discrimination, sexual orientation is not a matter of choice, gays and lesbians have consistently had their interests dismissed and overridden in the political process, and sexual orientation has nothing to do with an individual’s ability to perform in society.
Put simply, and especially in light of our history, laws that expressly discriminate against gays and lesbians, whether in marriage, child custody disputes, employment, housing, or any other context are properly understood as suspect in the sense that they are highly likely to be tainted by considerations of animus, hostility, ignorance, and prejudice. This, to me, is the deepest and truest reason for invalidating laws that discriminate against gays and lesbians.
Moreover, unlike the “marriage is a fundamental interest” and irrationality arguments, the suspect classification argument renders all government discrimination against gays and lesbians presumptively unconstitutional — as it should be. This argument cuts to the very heart of the issue and no longer skirts around the edges of the problem. It is my hope that the Court will embrace this argument and thereby put government-sponsored discrimination against gays and lesbians to rest, once and for all.
I’d like to conclude with two final observations. First, perhaps foolishly, I am an irrepressible optimist. I tend to believe in progress, especially in the realm of discrimination. When we think back over the past hundred years, America has made great strides in addressing, though surely not solving, issues of discrimination based on race, gender, religion, and now sexual orientation.
I am proud of the role that lawyers, law professors, and judges have played in helping this progress along. It is important not to take this achievement for granted. Twenty-five years ago, no one in this room would have imagined that the Supreme Court of the United States would hold that homosexuals have a constitutional right to marry one another. In truth, this is remarkable.
It is also important to understand the central role courts have played in this progress. As of now, same-sex marriage is legal in thirty-seven states. But only 11 of those states have voluntarily chosen to legalize same-sex marriage by legislation. But for the role of courts, thirty-nine states would still forbid same-sex couples to marry.
Moreover, because almost all of those states have adopted state constitutional amendments forbidding same-sex marriage, even a majority of the citizens of those states could not legalize same-sex marriage through legislation if they wished to do so. In such circumstances, the role of courts in interpreting and applying the Constitution is essential.
My second and final point looks to the future. For most of American history religion controlled the law on issues like sexual expression, contraception, abortion, and homosexuality. Traditional Christian values dictated the content of our laws. In the last half century, though, due largely, though not entirely, to the Supreme Court, those Christian values have been pushed aside, and individuals have been freed to act on their own personal and religious beliefs, rather than dictated to by the religious beliefs of others.
This is a great achievement in a society dedicated to the separation of church and state. But it now leaves us with an interesting challenge. For our Constitution also guarantees the freedom to practice one’s religion, and with the demise of the religious state, those who hold to traditional Christian values find themselves on the defensive. No longer able to dictate that others must act in accord with their religious beliefs, they now demand that they be permitted to act in accord with their own beliefs.
Hobby Lobby demands the right not to provide certain contraceptives to its women employees, Catholic priests demand the right not to marry same-sex couples, and florists, bakers, hotels owners, and restaurant owners demand the right not to participate in same-sex weddings. These are not easy questions for one who values both the separation of church and state and the freedom of religion, as I do.
But those are questions for another day. For now, we are where we are, and we are, quite simply, on the threshold on an exciting new era in human dignity.
I can’t wait to see the celebrations!
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