US: evolving constitutional standards over gender and sexual orientation

Philosopher Jeremy Bentham wrote an essay in 1785 arguing against British sodomy laws. He pointed to the sodomy practices in Greek and Roman culture which he claimed did not threaten the institution of marriage. Despite Bentham’s essay, those acts were never decriminalized. The famous nineteenth century Irish author, Oscar Wilde, was convicted of sodomy and served time in prison during the height of his fame.

Legal challenges to the constitutionality of statutes relating to non-traditional consensual sexual activity were not brought until late in the twentieth century. In 1986, the United States Supreme Court handed down its opinion in the controversial case of Bowers v Hardwick. Hardwick challenged the constitutionality of the Georgia statute which criminalized consensual sodomy by both heterosexuals and homosexuals.

Legal challenges

Hardwick filed suit in the United States District Court against Michael J. Bowers, the state Attorney General challenging the constitutionality of the statute. The District Court granted defendant Bowers’ motion to dismiss for failure to state a claim. The Court of Appeals for the Eleventh Circuit reversed and remanded the case back to the District Court for trial. The United States Supreme Court granted Bowers’ petition for a writ of certiorari and decided to hear the case. 

Hardwick’s attorneys cited and relied upon the Supreme Court’s earlier ruling in Griswold v Connecticut, decided in 1965 and more fully discussed in these course materials in the paper entitled The Right of Privacy.

The court’s reasoning in Griswold was brilliantly creative and certainly liberal, finding a constitutional right of privacy despite the fact the word privacy is not found in the constitution.

He also cited the case of Stanley v Georgia where the Supreme Court in 1969 upheld the right of an adult to read or view sexually explicit materials in the privacy of his or her home. He also cited Roe v Wade, the famous 1973 opinion where the court upheld the right of a woman to have an abortion in the early stages of her pregnancy, notwithstanding a state law outlawing abortion.

Hardwick argued sexual activity in a private and intimate setting between two consenting adults is beyond the reach of the state’s authority to legislate and criminalize. He argued a violation of his right to due process of law as guaranteed by the Fourteenth Amendment. He also argued such a state criminal statute violates the Ninth Amendment which states, “The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.” 

By a vote of six to three, the Supreme Court upheld the constitutionality of the Georgia sodomy statute. Writing for the majority, Justice Byron White explained the court was not rendering judgment on whether laws criminalizing sodomy between consenting adults are wise or desirable.  Rather, he concluded states are empowered to criminalize such conduct as they deem necessary through the legislative process. He noted the centuries long acceptance of these acts as criminal. The strong views stated by the three dissenting justices who would declare the Georgia statute unconstitutional would years later become the law.

Rendering judgment

Byron ‘Whizzer’ White was a star American football player at the University of Colorado and also played professionally. A critic of his opinion in Bowers v Hardwick, noting that White played football long snapper as well as other positions, wryly and sarcastically opined that White “still saw the world upside down, backwards and between his legs.”

The Lawrence Court pointed out the changing mores of the country. It noted at the time of its opinion in Bowers (1986) there were 25 states with statutes making consensual homosexual activity criminal, but by the time the Lawrence case came before it 17 years later, there were only 13 such states. Only four states by then ostensibly enforced such laws against both homosexual and heterosexual persons.

Same-sex rights were further expanded by the Supreme Court’s ruling in U. S. v Windsor. When the female spouse of Edith Windsor died, Windsor was required to pay substantially higher estate taxes because the statute creating exemptions to those taxes clearly provided the exemption only applied to heterosexual couples and not to same sex couples.

The United States Supreme Court accepted the case and ultimately decided this statute was unconstitutional in that it denied Windsor her right to equal protection of the law guaranteed by the Fifth and Fourteenth Amendments. Windsor became a hero to the gay community.

In Obergefell v Hodges the United States Supreme Court, in an opinion rendered in 2015 and which was roundly criticized by conservatives, ruled same sex marriage is constitutionally protected and that any state which prohibited same sex marriages would have those statutes declared unconstitutional as they violate the equal protection rights of persons comprising a same sex couple.

One reason why the Obergefell ruling was criticized was marriage had been recognized as a matter within the purview of state governments and defined by that state’s laws. There is no such thing as a federal marriage license. For many years the court let stand state laws about marriage which differed from other states on such matters as the minimum age a person could be married, whether a medical test was required and whether a waiting period was required between the application for a marriage license and the ceremony. Marriage was considered a matter of state law.

Further liberalization

In the term of the United States Supreme Court, which ended in July 2020, there were two important opinions rendered which vastly expanded the liberalization of gender related cases. In June of 2020 in the case of Medical Services v Russo the court found a Louisiana statute violated the constitution and the holding of Roe v Wade when it required doctors performing abortions to have admitting privileges at nearby hospitals. The decision was by a vote of five to four with Chief Justice John Roberts, somewhat surprisingly, joining the four traditional liberal justices.

Also in the 2020 term, the court had before it three cases raising the question of whether or not the Civil Rights Act of 1964 protected gay, lesbian and transgender persons from workplace discrimination given the Civil Rights Act of 1964 prohibition of discrimination based on sex.  The Court’s opinions in Bostock v Clayton, Altitude Express v Zarda and Harris Funeral Homes v Equal Employment Opportunity Commission ruled such persons fall within the protection of the statute.   Finding that the Civil Rights Act did include such persons, the majority was surprisingly joined by recently confirmed Associate Justice Neil Gorsuch, perceived at the time of his nomination as a staunch social conservative. Another new social conservative justice, Amy Coney Barrett, had not joined the Court at the time these cases were decided.

Strict interpretation of statutory language is described by some as ‘textualism’. This is an approach championed by the late Justice Antonin Scalia. More liberal commentators and Supreme Court watchers saw Justice Gorsuch’s position as one to be celebrated. Surprisingly, it was Gorsuch who wrote the majority opinion. He included in it this statement, “An employer who fires an individual for merely being gay or transgender defies the law.”

Most young people in the United States would agree with the recent remark of one of my SCHC 382G students who said, “The sexual orientation of a person is no more important to me than whether that person is right or left-handed.” There are many older Americans who strongly disagree. Churches are struggling to decide whether to recognize or conduct same sex marriages. In the span of only a few years, the United States Supreme Court has made rulings which have profoundly and fundamentally effected traditional values and mores of our society which had existed for thousands of years.   

A growing number of people in the United States accept that homosexual and transgender persons were born completely predisposed to their lifestyles and that they should not be condemned for their choices. And now we know from recent rulings of the United States Supreme Court these persons have the same rights and protections all Americans are guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution.

Dr. Joel W. Collins, Jr. is an adjunct professor at the University of South Carolina