Question: In 10 years, how did we get from an America in which 13 states still had anti-sodomy laws that made criminals of lesbian and gay people just for having sex to an America where 13 jurisdictions allow same-sex couples the freedom to marry?
Answer: We relied on the Constitution.
June 26 marks the 10th anniversary of Lambda Legal's historic Supreme Court victory in Lawrence v. Texas, overturning all remaining state sodomy laws. This week, the court will rule on the next two significant gay rights cases. Its holdings will no doubt rest upon the decision in Lawrence and, if the decisions are positive, will further clarify the rights to freedom and equality that lesbian and gay Americans share with their fellow Americans.
Lawrence changed the legal landscape because it unlocked the door to constitutionally protected liberty for LGBT Americans. We relied on the Constitution, as every marginalized and disempowered group has done since our country was founded. Writing for the majority, Justice Anthony Kennedy explained how constitutional principles must be applied to the inequalities identified in every era -- and should be invoked to ensure freedom:
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
The two cases pending now before the Supreme Court address two gross and painful inequalities: the exclusion of same-sex couples from the institution of civil marriage; and the refusal, currently required by federal law, by the federal government to recognize and respect the marriages of same-sex couples. In each case, the plaintiffs argue that laws "once thought necessary and proper in fact serve only to oppress."
Looking at the changes in the 10 years since 2003, it may appear that the legal rights of LGBT people have been easily and quickly secured. But, in fact, decades of strategic litigation, political advocacy and public education have brought us to this point. A little more than 25 years ago, in a ruling laced with anti-gay language, the Supreme Court upheld Georgia's sodomy law in Bowers v. Hardwick. It took 17 years of litigation and activism to undo that mistake and reverse Bowers, a period of time that was unusually short for such a legal reversal, but excruciatingly long for lesbians and gay men living under the shadows of criminal sodomy laws.
The legal fight for the freedom to marry started over 20 years ago in Hawaii. For years, the resistance and backlash was so strong that 36 states passed explicit laws and constitutional amendments barring same-sex couples from civil marriage. And in response to the possibility, however slim, that same-sex couples might be allowed to marry in Hawaii, the U.S. Congress hastily enacted the so-called Defense of Marriage Act (DOMA) in 1996 to prohibit the federal government from treating same-sex couples as married, and to notify states, however illegally, that they need not recognize legal marriages of same-sex couples from other jurisdictions.
And now we have reached this moment in history: The U.S. Supreme Court is reviewing an amendment to the California constitution, approved by the barest majority of voters and propelled by a backlash against a California Supreme Court ruling that upheld the constitutional right of same-sex couples to choose to marry. This hateful and discriminatory amendment should be ruled unconstitutional because stripping an oppressed minority of previously granted rights violates the equal protection clause. It carves out a "gay exception" to the equal protection clause and literally requires the opposite, just as the unconstitutional Amendment 2 in Colorado did before it was struck down in 1996. As Justice Kennedy wrote in Romer v. Evans, the first Supreme Court victory on behalf of LGBT rights:
We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws.
The court is also reviewing the constitutionality of DOMA, which, for 17 years, has stained our democracy by declaring same-sex couples and their families unworthy of fairness and respect from their own government. Edie Windsor, represented at the court by the ACLU, lived in a committed relationship with her partner, Thea Spyer, for 44 years, and they legally married in Canada in 2007. Yet when Thea passed away, the federal government refused to acknowledge their marriage and taxed Edie as if she and Thea were strangers under the law. Such unequal treatment and intrusion by the federal government into the family laws of the state should also be ruled unconstitutional. DOMA was born of fear and ignorance, and it should die because it violates the guarantees of our Constitution.
A lot has changed in our country in the last 10 years, but it has not happened overnight. And while new ideas about sexuality and gender animate and enrich our movement, the advances we have secured for the rights of LGBT people do not rest so much on these ideas as they rest on cherished constitutional principles of fairness. And our progress is incomplete. There is still much to be done to secure fairness for Americans without regard to sexual orientation, gender identity or expression in workplaces, schools, sports, and in every area of public and private life in every region of our country.
In every generation, we remake America using the tools and values with which it was founded. "As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."
Read Lambda Legal's blog series "From Sex to Marriage: How We Got From Lawrence v. Texas to the Cases Against DOMA and Prop 8."
Learn more about the Prop 8 and DOMA cases currently before the Supreme Court.