Trump, The Supreme Court, And The Rights Of Gays And Lesbians, Part 4

With the nomination of Judge Neil Gorsuch to serve on the Supreme Court of the United States instead of Chief Judge Merrick Garland, and with the possibility of another Trump Supreme Court nomination at some point down the road, it is useful to reflect on the history of homosexuality in Western culture and on the pivotal role the Supreme Court has played in helping to shape our nation’s laws in this regard.

The plain and simple fact is that, with two Trump appointments to the Supreme Court, should that come to pass, we can expect significant changes in the way the Court approaches the rights of gays and lesbians in the future. Before we get to that point, it is important to understand how we got to where we are today. It is only with that understanding that we can truly comprehend the magnitude of the challenge ahead.

In my first three pieces in this series, I discussed the history of homosexuality from the ancient world through the Supreme Court’s 2003 decision in Lawrence v. Texas. See part 1; part 2; and part 3.

In this, the fourth and final piece in the series, I will discuss the role of the Supreme Court in addressing the issue of same-sex marriage. Each of these posts, I should note, is drawn in part from my forthcoming book, Sex and the Constitution. I hope you will find this history instructive.


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 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. Instead, they would have to go through the much more onerous process of re-amending their state constitutions.

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,” 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, thirteen 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. The pushback, again, was furious.

In California, for example, the Christian Right launched a vigorous – and successful ― campaign to amend the 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 third decision in our story – United States v. Windsor. In a bitterly-divided five-to-four decision, the Supreme Court invalidated DOMA on June 26, 2013 – ten years to the day after its decision in Lawrence. As in 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 a state’s decision to give same-sex couples “the right to marry conferred upon them a dignity and status of immense import.” 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.” 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.

In the years after Windsor, there was a virtual avalanche of lower court decisions invalidating state laws denying same-sex couples the freedom to marry. Then, in Obergefell v. Hodges, decided on June 26, two years to the day after Windsor, the Supreme Court, in another bitterly-divided five-to-four decision, held that states cannot constitutionally deny two persons of the same sex the freedom to marry.

The opinion, written once again by Justice Anthony Kennedy, and joined once again by Justices Ginsburg, Breyer, Sotomayor, and Kagan, was premised on what Justice Kennedy described as “the transcendent importance of marriage.”

Although conceding that marriage had traditionally been understood as between a man and a woman, Kennedy declared that it is both appropriate and inevitable in a free society that “new dimensions of freedom become apparent to new generations” of Americans over time.

Noting that the Court had long held that fundamental “personal choices central to individual dignity and autonomy” can be protected by the Constitution, and that the Court had long recognized marriage as one of those fundamental rights, Kennedy concluded that, although “the limitation of marriage to opposite-sex couples may have long seemed natural and just, its inconsistency with the central meaning of the fundamental right to marry is now manifest.”

Predictably, Chief Justice Roberts and Justices Scalia, Thomas, and Alito dissented. Roberts accused the justices in the majority of rampant and reckless judicial activism. “The majority’s decision,” he declared, “is an act of will, not legal judgment.” Indeed, he fumed, the majority’s position was “simply indefensible as a matter of constitutional law.”

Upon exiting the Supreme Court building on June 26, 2015, Jim Obergefell, in tears, observed that “today’s ruling . . . affirms that our love is equal” and that “all Americans deserve equal dignity, respect and treatment.” He was surrounded by hundreds of supporters beaming with joy and pride, waving rainbow flags, and chanting “Love Conquers.”

At the same time, throngs of couples and families – gay and straight – flocked to the Stonewall Inn to rejoice and to pay tribute to the determined gay rights activists whose efforts over the years had opened the door to the Court’s decision. For most of those who gathered at the Stonewall, this was a moment they had never thought possible in their lifetime.

This enthusiasm reflected the views of a clear majority of the American people. Indeed, despite the complaints of the dissenting justices that the Court’s decision in Obergefell had been foisted upon the American people, 58 percent of Americans supported the decision.

In a statement issued only moments after the Court announced its judgment, President Barack Obama hailed Obergefell as “a victory for America,” declaring that it “affirms what millions of Americans already know in their hearts.” “When all Americans are treated as equal,” he said, choking with emotion, “we are all more free.” The president exulted that “America should be very proud.”

In the four months after the Court’s decision, some 200,000 gays and lesbians entered into same-sex marriages in states across the nation, bringing to one million the number of gays and lesbians in same-sex marriages. More than a quarter of these families were already raising their own children.

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. But is important not to take this achievement for granted. Twenty-five years ago, no one 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.

My second and final point looks to the future. It is important to note that changes in public attitudes and understandings did not in themselves dictate any particular change in constitutional doctrine. Bowers and Obergefell were both five-to-four decisions. Only one vote had “changed” over the course of those three decades. Had Robert Bork been confirmed, and Anthony Kennedy therefore never been appointed to the Court, the outcome in Windsor and Obergefell almost surely would have been five-to-four the other way.

And that brings me, finally, to the future, to the difference between Merrick Garland and Neil Gorsuch, and to the possibility that, if Donald Trump has the opportunity to appoint another justice to replace one of the three oldest sitting justices – Ginsburg, Kennedy, and Breyer – he will have reconstituted the Supreme Court into an institution that almost surely would not have decided Lawrence, Windsor or Obergefell the way the Court did. It will, I fear, be a Court that takes a very different approach to our most precious rights and freedoms.

There are no doubt those who will rejoice. Do not count me as one of them....