Constitutional Queer the Modern Legal

Constitutional Queer

The Modern Legal History of Homosexuality: The Rights of Gays, Lesbians, and Transgendereds in the U.S. Constitution

There are only a handful of political issues in the past few decades -- and in the current time-that are as controversial as the debate concerning gay marriage. Some states have put measures or ballots to the voters to try and establish the right for same-sex couples to marry, while others raise measures to specifically bar such marriages from having any legal significance or authority. Some states even have both types of measure in competition with each other, even on the very same ballot. Then there are the initiatives raised in the state legislatures, one step removed from the voters themselves, and lastly the issue of judicial activism in this area has propelled the debate to much more fervent levels.

Almost all of the national attention, arguing, and rabble-rousing that has centered on this issue has been direct at activities at the state level, most recently in New Jersey as well as California, New Hampshire, Iowa, and others. This is because marriage is a right granted and primarily defined by the states themselves, rather than the federal government. The national government has not been uninvolved in the issue, however, and the passage of the Defense of Marriage Act frees any state from recognizing a same-sex marriage that took place in another state (which is required for heterosexual marriages), and defines marriage as a union between a man and a woman for the purposes of the federal government. Though this showed some movement by the federal government on the issue, it still left a great deal of leeway to the states in coming to their own decisions.

It also left the constitutionality of allowing same-sex marriages -- and of disallowing same-sex marriages -- completely unaddressed. The legal rights of homosexuals was not something even considered by the Founding Fathers or the members of the Constitutional Convention; just as the legality of slavery was taken as a given by those in attendance at the convention, the issue of homosexuality would have been though of -- or more correctly not thought of -- as a non-issue, especially in the workings of the federal government. There have been indicators in recent decades, however, that the federal government might have more to say on the issue of same-sex marriage in the near future, even insofar as a clear Supreme Court ruling or a constitutional amendment.

Bowers v. Hardwick

Heard before the Supreme Court in 1986, the arguments in Bowers v. Hardwick were fairly simple, though the incident leading to the case being heard was not. A police officer in Georgia had given Hardwick a ticket for throwing a beer bottle -- which landed in a trash can right behind the gay bar where Hardwick worked. Through a series of other manipulative and deliberately deceptive acts, the officer entered Hardwick's home one night to find him engaged in consensual oral sex with another man -- a violation of a Georgia anti-sodomy law (Oyez 2010). Though the sodomy case against both Hardwick and his companion was never prosecuted, Hardwick sued the attorney general of the state of Georgia -- the Bowers of the case -- for a declaration that the anti-sodomy law was unconstitutional.

When the case reached the Supreme Court, the Constitutional right in question was the right to privacy that had been established in previous decision. Hardwick asserted that this right applied to the consensual sexual acts specifically mentioned in the Georgia law, and that the law was therefore unconstitutional. The State of Georgia disagreed, and the Court ended up siding with the state. It did so through a rather radical method of interpreting the Constitution, maintaining that though the right to privacy was implied in the due process clause as part of the liberties citizens enjoyed, because this right was not explicitly given to sexual acts between homosexual couples by the framers of the Constitution, it was not a constitutional right (Justia 2010). In other words, though a general right to privacy was seen to exist based on constitutional interpretation, the Court ruled that this right specifically and explicitly did not apply to the private conduct of consenting homosexual adults.

The ruling in Bowers v. Hardwick was highly controversial, and the subject of much debate among activists and legal scholars after it was handed down. Many states that had anti-sodomy laws that were similar to Georgia's had been waiting to see the results of this case, the constitutionality of their own laws also dependent on the outcome, and so the ruling in Bowers v. Hardwick essentially perpetuated the criminality of engaging in consensual homosexual activities in these states (Justia 2010). The response in the gay, lesbian, and transgendered community was a marked increase in activism throughout the rest of the eighties and nineties, a time when the general political and cultural landscape of the country changed quite drastically in relation to the issues at hand as well.

Lawrence v. Texas

There is no clearer indication of the change in both the public and the government that has occurred since the time of Bowers v. Hardwick than the decision in Lawrence v. Texas, which not only overturned the decisions in Bowers but concluded that the decision had indeed been wrong when it was made (Cornell 2010). In this case, two men had been convicted of sodomy under a Texas law that prohibited such behavior, after police responded to an unsubstantiated weapons complaint and entered Lawrence's apartment (Cornell 2010). Through a series of appeals, the case reached the Supreme Court in much the same manner, though Lawrence remained the appellant as the Texas law had been previously upheld by lower courts, based on the Court's earlier decision in Bowers v. Hardwick.

When the Supreme Court agreed to hear the case, the matter considered was essentially the same as that which had been before the Court in Bowers v. Hardwick, and the ruling was almost exactly the opposite. The Court confirmed it's earlier findings that there is a right to privacy included in the liberties granted by the due process clause of the Fourteenth Amendment, and upheld the dissenting opinion in Bowers (written by Justice Stevens, who was still on the court at the time of Lawrence and is still currently a Justice) that the belief that an act is immoral by the majority of legislators in a state government does not equal a compelling state interest that would allow the abridgment of constitutional rights, and that the Texas anti-sodomy laws -- and therefore all others -- were a violation of due process (Cornell 2010).

This decision effectively ended the criminality of consenting sexual relationship between same-sex adults, but it did not address the issue of the legal rights of same-sex couples, especially marriage, at all. At this point, the Defense of Marriage Act had already been passed, and while this did not change the Constitution -- the highest body of law in the land -- it was a very high-level piece of legislation that indicated the federal government's position on same-sex marriage in no uncertain terms. Still, it was possible to construe the ruling in Lawrence v. Texas to mean that the right to marriage that was being denied to same-sex couples was also a denial of the due process guarantees of the Fourteenth Amendment, and that same-sex marriages should therefore be legal as a matter of constitutional law. Unfortunately, it would take a Supreme Court test case to determine if this is true.

Baker v. Nelson

This test case appeared, but only because the Supreme Court was forced as a matter of law to hear the case (rather than choosing it from among many petitioners, as it does with most of its cases. In Baker v. Nelson, the petitioners sued the clerk of their county in Minnesota for a marriage license, which they had been denied solely on the basis of their same-sex status. The Minnesota State Supreme Court upheld the clerk's interpretation of Minnesota marriage law, asserting that it was meant only to apply to opposite-sex couples, and in fact went further in ordering the clerk not to issue the petitioners a marriage license (UMT 2010). The petitioners appealed to the U.S. Supreme Court.