The Rainbow Court: How the Supreme Court is Changing the Lives of LGBT Americans while the Struggle Continues

By: Nick Kapoor, CHRO Commissioner

The Supreme Court of the United States is at the apex of a co-equal branch of our government. Its decisions are usually final and affect the lives of every American. The Court has and continues to have a large impact on LGBT Americans. But is the fight over? Are LGBT issues settled in America? Let’s begin with 1970. President Nixon had been in office for two years. The War in Vietnam was raging and the “counterculture” was still reeling from Woodstock. But 1970 is important for another, less recognized, reason. It was the official kick off for the fight of same-sex couples to obtain the right to marry in the United States.

On May 18, 1970 Richard Baker and James McConnell, two gay students from the University of Minnesota, applied for a marriage license from the Hennepin County District Court Clerk, Gerald Nelson. Nelson denied the application for a marriage license because the applicants were two men. The Supreme Court of Minnesota dismissed the case, Baker v. Nelson, because it was “clear” in the laws of Minnesota that “marriage” meant the union between one man and one woman. Furthermore, no constitutional provisions were found to be maligned because, the Minnesota Supreme Court’s logic produced, child rearing and procreation were central to marriage according to the Constitution. On October 10, 1972, the Supreme Court dismissed a further appeal due to “want of a substantial federal question.” The Supreme Court saw this as a purely state’s issue and wouldn’t touch it. And Baker became binding precedent until another case reached the Supreme Court. It would take 43 years for that to happen.

As was the case in the early 2000s, many state supreme courts were issuing decisions on same-sex marriage. The California Supreme Court issued a 4-3 decision legalizing same sex marriage in California in May 2008. On November 4, 2008, the voters of California passed Proposition 8 by a 52% – 48% margin which overturned the decision of the California Supreme Court and, again made same-sex marriage illegal in California. (This was the same night that Barack Obama carried California by a 61% – 37% margin.) Suit was filed by a lesbian couple, Kris Perry and Sandy Stier, as well as a gay couple, Paul Katami and Jeff Zarillo who were denied marriage licenses post-Prop 8 passage. District Judge Vaughn Walker found Prop 8 unconstitutional because there was no rational basis to deny same-sex couples the right to marry. Opponents of Judge Walker’s decision wanted his decision thrown out because Judge Walker was openly gay. The case, Hollingsworth v. Perry, made its way to the Supreme Court and in a 5-4 decision on June 26, 2013 a strange coalition of the somewhat conservative Chief Justice Roberts, ultra-conservative Justice Scalia as well as liberal justices Kagan, Breyer, and Ginsburg threw out the case and made Judge Walker’s decision final only applicable to California. Prop 8 was overturned and same sex marriage returned to California. But the Supreme Court did not rule on the merits of same sex marriage nationwide. This would wait another two years.

Jim Obergefell and John Arthur fell in love and committed themselves to each other. Unfortunately, Arthur was diagnosed with ALS, but Obergefell and Arthur wanted to take part in the millennia old tradition of marriage and flew from Ohio to Maryland (where same-sex marriage was legal) where they were married on an airport tarmac. When, months later, Arthur died, Ohio refused to list Obergefell was Arthur’s spouse because same-sex marriage was illegal in Ohio.

April DeBoer and Jayne Rowse were both nurses. They adopted three children into their family, but because of Michigan’s laws they could not get married and could not jointly adopt their children solely because they were two women. If something should happen to one or both of them, their children would be in limbo.

Army Reserve Sergeant First Class Ijpe DeKoe and his husband Thomas Kostura married in New York in 2011. DeKoe was deployed to Afghanistan for over a year. He returned from his service and settled down with his husband in Tennessee however Tennessee denied recognizing their marriage. DeKoe and Kostrua’s marriage appeared and disappeared when they crossed state lines.

Gregory Bourke and Michael DeLeon were married in Canada. Kentucky would not recognize their marriage for tax purposes or giving them the ability to jointly adopt their children.

These four couples appealed all their cases to the Sixth Circuit Court of Appeals. The Sixth Circuit, in a 2-1 decision, found that there was no fundamental right to same-sex marriage. This created a Circuit split since up to this point other Circuit Courts of Appeal found there was a fundamental right to same-sex marriage in the Constitution setting up a showdown at the Highest Court of the Land.

The consolidated cases came to have the name Obergefell, et al. v. Hodges, et al. but was made up of the cases of the four couples above. (Just like the famous case of Brown v. Board of Education was not just about Oliver Brown and his daughter Linda Brown, but was a class action lawsuit with Brown’s name mentioned first because it was first alphabetically. Here, Jim Obergefell filed his appeal first and therefore appears first on the case name.) The usual swing justice on the Supreme Court, Justice Kennedy, wrote the majority opinion joined by the liberal wing, Justices Ginsburg, Breyer, Sotomayor, and Kagan in a landmark 5-4 decision on June 26, 2015 legalizing same sex marriage nationwide proclaiming “Marriage remains a building block of our national community.”

Justice Kennedy concluded his momentous and superbly written opinion in no uncertain terms of what this decision would mean, “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilizations oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

Another important case that is part of the LGBT marriage fight in the canon of American Constitutional Law is that of U.S. v. Windsor which was decided June 26, 2013. In 1996 President Clinton signed the Defense of Marriage Act (DOMA) under political pressure during a reelection year with many Congressional Democrats supporting it. DOMA wrote into federal law that for the purposes of the federal government, marriage could only be recognized between one man and one woman, regardless of what the states said.

In 2009, Edie Windsor married her longtime partner Thea Spyer in Ontario, Canada. The State of New York recognized the marriage as valid, however, unfortunately due to DOMA, when Thea sadly passed away, the federal government did not recognize the same-sex marriage. The IRS slapped Edie with a $363,053 inheritance tax bill since Thea had no “legal” surviving spouse.

Justice Kennedy wrote again for himself and the liberal wing of the Court (Justices Ginsburg, Breyer, Sotomayor, and Kagan) in a fragmented 5-4 opinion, “DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned marriages. It contrives to deprive some couples married under the laws of their State, but not others, of both rights and responsibilities, creating two contradictory marriage regimes within the same State. It also forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect.”  DOMA was overturned as a “deprivation of the equal liberty of persons that is protected by the Fifth Amendment.”

An important facet of the LGBT struggle for equality is to remember that same-sex marriage is not the be all and end all.  There are many more issues facing the LGBT community that have come before the Supreme Court in the previous decades and more that will soon arrive at the justices’ doorstep.

In 1950 a U.S. Senate subcommittee report on the “Employment of Homosexuals and Other Sex Perverts in the U.S. Government” said “…homosexuals are perverts who may be broadly defined as ‘persons of either sex who as adults engage in sexual activates with persons of the same sex.’” Fast forward 36 years to 1986 when the Supreme Court decided Bowers v. Hardwick in a split 5-4 decision. Bowers allowed a Georgia statute to remain in effect that said intimate sexual contact by persons of the same sex in a private setting was illegal. The Constitution did not guarantee the right of Americans of the same sex to participate in sexual activity. It would take 17 more years until 2003 for Lawrence v. Texas to make its way to the Court to revisit Bowers. In another split and contentious 6-3 decision, again the swing Justice Kennedy joined the then-liberal bloc of Justices (Ginsburg, Breyer, Stevens, and Souter) to overturn Bowers and allow same-sex sexual contact in America. Justice O’Connor concurred in the judgement being the sixth vote.

In the Majority Opinion in Lawrence Justice Kennedy does not equivocate, “When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.” He continues, “When sexuality finds overt expression in intimidated conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”

The struggle for equality has more recently focused on the transgender community in America. For example, the North Carolina Legislature and Former Governor Pat McCrory (R) passed HB 2 which mandated transgender North Carolinians must use the bathroom of their assigned sex instead of their gender identity. Multiple companies cancelled expansions in North Carolina as well as the NCAA cancelling playoff games in the state. Pat McCrory lost his reelection bid to Attorney General and now Governor Roy Cooper (D) by 10,000 votes in November 2016. The legislature has recently watered down HB 2 with Gov. Cooper’s approval, but the implications of the “bathroom battle” still loom.

Another case at the Supreme Court, G.G. v. Gloucester County School Board saw Gavin Grimm, a male transgender student at a high school in Virginia, wanting to use the men’s bathroom. The case was scheduled for oral arguments, but pulled from the docket after the Trump administration pulled its support from the case reversing the decision of the Obama administration. The fight for transgender equality is the New Frontier for the millennial generation and will continue to be fought in state legislatures, state judiciaries, and the federal judiciary.

As many wins as there has been for the LGBT community at the Supreme Court, the full picture is still hazy. According to Vox, “38.2 percent of open LGB people were harassed on the job due to their sexual orientation.” Furthermore, as of August 2016 according to Vox, “30 states don’t ban discrimination against sexual orientation and gender identity in the workplace.” There are 36 states in America where there are no protections for LGBT students against hate crime harassment and bullying. The heinous practice of conversion therapy – the practice of licensed medical professionals attempting to “convert” LGBT youths to heterosexual – is still legal in 42 states. There still exists LGBT discrimination in housing, employment, adoption, schools, and in various parts of the country even restaurants and many other public places.

June is Pride month and June 26 National Equality Day by Executive Order of President Obama (Lawrence, Hollingsworth, Windsor, and Obergefell were all decided on June 26 of their respective years.) We must remember that the fight goes on for LGBT equality in all facets of American life every day. Pride must exist. The LGBT community cannot be put back in the closet or in the shadows of American society. The future of civil rights must encompass and welcome LGBT Americans as full members of society. We must stay vigilant and act when we see injustice being done. Let these Supreme Court cases (almost all being decided by one vote) and statistics show what the LGBT community fights for day in and day out. As then-Senator Ted Kennedy said at the 1980 Democratic National Convention withdrawing from the presidential nominating contest, “…the work goes on, the cause endures, the hope still lives, and the dream shall never die.” The dream of full equality for all LGBT Americans continues to live and thrive and I believe with hard work and diligence, one day, will be achieved.

For Further Reading On…

Lawrence v. Texas – Dale Carpenter’s Flagrant Conduct: The Story of Lawrence v. Texas

Hollingsworth v. Perry – Kenji Yoshino’s Speak Now: Marriage Equality on Trial; Kris Perry and Sandy Stier’s Love on Trial: Our Supreme Court Fight for the Right to Marry; David Boies and Ted Olson’s Redeeming the Dream: Proposition 8 and the Struggle for Marriage Equality; HBO’s The Case Against 8; as well as 8: The Play which can be found on YouTube written by Oscar Winning playwright Dustin Lance Black

U.S. v. Windsor – Roberta Kaplan’s Then Comes Marriage: United States v. Windsor and the Defeat of DOMA

General Reading on Same Sex Marriage and LGBT Rights – Jo Becker’s Forcing the Spring: Inside the Fight for Marriage Equality; Marc Solomon’s Winning Marriage: The Inside Story of How Some-Sex Couples Took on the Politicians and Pundits – and Won; Kerry Eleveld’s Don’t Tell Me to Wait: How the Fight for Gay Rights Changed America and Transformed Obama’s Presidency; Lillian Faderman’s The Gay Revolution