Social attitudes toward same-sex conduct and relationships have changed dramatically in the last few decades of American history. Courts are slower to evolve than society, but a series of constitutional cases decided by the Supreme Court have greatly expanded the rights of LGBTQ+ individuals since the 1980s. The Court has traveled a long distance since its infamous 1986 decision in Bowers v. Hardwick, which allowed a state to criminalize "sodomy." This law applied to heterosexual and homosexual conduct, but the Court reviewed it specifically in the context of homosexual conduct. It decided that the right to privacy provided by constitutional due process did not cover homosexual behavior, even when consenting adults are involved. (The state supreme court later struck down this law on state constitutional grounds.)
In Romer v. Evans a decade later, the Supreme Court began to reverse course when it wiped out a Colorado constitutional amendment that would have prevented state and local government entities from granting legally protected status to LGBTQ+ individuals. Certain Colorado cities already had passed these laws, which would have been invalidated by the proposed amendment. In striking down the amendment as a violation of equal protection, the Court claimed to apply the rational basis standard of review, which is very lenient. However, it appeared to apply a standard more demanding than generic rational basis review. This standard is sometimes called "rational basis-plus." The Court emphasized that the amendment showed overt animosity toward LGBTQ+ individuals in striking it down.
Free Association and LGBTQ+ Exclusions
In Boy Scouts of America v. Dale, decided shortly after Romer, the Supreme Court upheld the Boy Scouts decision to exclude LGBTQ+ members. It relied on the freedom of association provided by the First Amendment, which allows an organization to exclude people who would undermine its purpose.
Considering this trend in jurisprudence, the days of Bowers were clearly numbered. In the 2003 decision of Lawrence v. Texas, the Supreme Court overruled Bowers and struck down a state law that criminalized homosexual sodomy. It determined that states cannot restrict the right of consenting adults to engage in private sexual conduct, which implicates personal autonomy. Lawrence was based on both due process and equal protection principles, since the law at issue (unlike the law in Bowers) did not criminalize heterosexual sodomy.
The Road to Marriage Equality
The early 21st century witnessed gradual progress toward marriage equality at the state level. This involved a combination of legislative actions and decisions by state courts that struck down laws against same-sex marriage for violating state constitutions. The Supreme Court did not address marriage equality in these early stages, although it declined to hear a case involving marriage equality in California on procedural grounds.
The first major Supreme Court decision on marriage equality came in US v. Windsor in 2013, which involved the federal Defense of Marriage Act. This law withheld recognition of same-sex marriage for the purposes of federal benefits. The Court ruled that DOMA violated the equal protection principle that had been "reverse incorporated" from the Fourteenth Amendment into the Fifth Amendment Due Process Clause. It appeared to apply an elevated standard of review to this classification, perhaps echoing the "rational basis-plus" standard in Romer and the intermediate scrutiny standard for gender classifications. The Court also pointed out that states traditionally have the right to define marriage as they choose, and the federal government must respect that right.
Two years later, the landmark decision of Obergefell v. Hodges conclusively resolved the constitutional debate over marriage equality. The Supreme Court ruled that state laws prohibiting same-sex marriage violate the Fourteenth Amendment on both due process and equal protection grounds. Authored by Justice Anthony Kennedy, the majority opinion noted that the right to marriage is a fundamental right and that the Founders could not have foreseen how certain liberty interests have developed over time.
Future of LGBTQ+ Rights
Some of the conservative Justices who currently sit on the Supreme Court have indicated that decisions such as those protecting same-sex marriage should be revisited and potentially overruled due to interpreting constitutional rights too broadly. These rights thus stand on precarious ground.