A beginner's guide and brief history of LGBTQ rights cases in the U.S. Supreme Court

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The New Yorker

A beginner's guide and brief history of LGBTQ rights cases in the U.S. Supreme Court

August 9, 2020

On June 26, 2015, the U.S. Supreme Court (SCOTUS) ruled in favor of the plaintiffs in Obergefell v. Hodges, granting marriage equality to same-sex couples nationwide. The case quickly became the catalyst for a national conversation about marriage equality and the progress of social equality in the United States. 

As a closeted high school freshman living in a conservative Texas suburb, the SCOTUS decision also served as a type of personal catalyst. For the first time, I felt proud of my identity. The transformative power of the Court’s opinion encouraged me to learn more about the history of LGBTQ+ rights in the U.S. Supreme Court. Aptly occurring about five years after the Obergefell decision, the nation recently witnessed the most consequential court case for the LGBTQ+ community since marriage equality: Bostock v. Clayton County (2020). Now, as an out-and-proud college junior, I hope to explain the history that led to this monumental decision.

The Early Struggle: Bowers v. Hardwick

The Court’s affirmation and expansion of LGBTQ+ rights has been a more common occurrence in recent memory. But in the early 1980’s, this reality was far from the truth.

In August 1982, Atlanta police officer Keith Torrick arrested Michael Hardwick and his companion for sodomy, a Georgia felony which carried the possibility of imprisonment for one to 20 years. In the resulting lawsuit and court case, Bowers v. Hardwick (1985), the Court ruled that sexual privacy was exclusively available for heterosexual couples, but not for same-sex couples. Unfortunately, the harmful rhetoric in the Bowers decision remained the law of the land for almost two decades.

A Snowball Effect: From Romer to Obergefell

In 1992, Colorado voters approved the addition of Amendment Two to the state constitution, which prohibited any judicial, legislative, or executive motion intended to protect LGBTQ+ people from discrimination. The resulting lawsuit, Romer v. Evans, reached the Supreme Court in 1995. 

The Romer decision was the first time the justices supported the idea that LGBTQ+ people should be treated equally. In a majority opinion written by Justice Anthony Kennedy, the Court concluded that “Amendment Two classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else.” Through Romer, the Supreme Court decisively ended classification of LGBTQ+ people as second-class citizens and established a precedent for many important decisions to come.

In 2003, the case Lawrence v. Texas was argued before the Court. The decision in Lawrence ruled the Texas “Homosexual Conduct” law unconstitutional and finally overturned the 1985 Bowers v. Hardwick case.

Lawrence paved the way for United States v. Windsor in 2013, which struck down the key provision in the 1996 Defense of Marriage Act (DOMA) that federally defined marriage as a union between one man and one woman. In this case, the Court decided that the principal purpose of the Defense of Marriage Act was to “identify and make unequal a subset of state-sanctioned marriages.”

These cases came to a head on April 28, 2015, when the Court heard oral arguments in Obergefell v. Hodges. The plaintiff, James Obergefell, alleged that the State of Ohio discriminated against his same-sex relationship by refusing to identify his name on the death certificate of his husband, John Arthur; the couple was legally wed in Maryland. In the majority opinion, the Court found “there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage,” thus granting marriage equality for same-sex couples nationwide. This case, the culmination of a legal strategy that began with Romer, was a critical victory in the history of LGBTQ+ rights before the U.S. Supreme Court.

Latest Decisions: Bostock

In October 2019, the Supreme Court heard three monumental cases (outlined below) to determine the applicability of federal employment discrimination laws to LGBTQ+ individuals. The stakes for this decision were high, and predictions for the outcome were grim. But on June 15, 2020 the Supreme Court ruled in favor of the LGBTQ+ community and effectively prohibited, nationwide, employment discrimination on the basis of sexual orienation or gender identity.

Bostock v. Clayton County came to fruition following Clayton County’s firing of a gay child-welfare-services coordinator, Gerald Bostock. Bostock claims that the county fired him for being gay, despite the fact that he worked in his capacity for over a decade and received great reviews from clients. Optimistic, Bostock hoped to “not only clear [his] name but restore [his] reputation and paint [his] own portrait, not have it painted by someone else."

Altitude Express v. Zarda is another case concerning the firing of a gay employee. Donald Zarda, who argued he was fired for being gay, often told female clients about his sexuality to help them overcome discomfort associated with the close-quarters arrangements necessitated by his profession: skydiving. Although Zarda has since passed away, his sister, Melissa Zarda, continued the fight on his behalf. She was similarly optimistic about the outcome of the case, reflecting that “if a man mentions his wife, that’s acceptable, but if a woman mentions her wife at work and gets fired, that’s sex discrimination.

The third case, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, involves the firing of a transgender woman named Aimee Stephens. Stephens worked as an embalmer and funeral director at R.G. & G.R. Funeral Homes in Michigan. Funeral home owner Thomas Rost fired Stephens after Stephens disclosed she was transgender. 

All three cases involve an interpretation of Title VII of the Civil Rights Act of 1964 as protecting sexual orientation and gender identity from discrimination on the basis of sex. Explicitly, Title VII protects employees from discrimination of race, color, national origin, sex, and religion. In the past, the Supreme Court has interpreted Title VII to also prohibit sexual harassment and gender stereotyping. But never, before June 15th, 2020, had the Court determined if sexual orientation and gender identity are also protected under Title VII. In the ultimate decision, the three cases were consolidated into a single case with the name Bostock v. Clayton County.

In the majority opinion, authored by Trump-appointed Justice Neil Gorsuch, the Court ruled that an employer who fires an employee for being LGBTQ+ “fires that person for traits or actions it would not have questioned in members of a different sex.” For that reason, “sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” Unlikely-ally Gorsuch wrote for a 6-3 majority, which included Justices Ginsburg, Breyer, Sotomayor, Kagan, and Chief Justice Roberts. The decision will have a significant impact across the United States, as over half of the 50 states currently lack employment protections for LGBTQ+ individuals.

Shifting Focus to Legislation

Since Romer, the Supreme Court has been a vehicle for transformative social and legal change for the LGBTQ+ community. Considering the recent decision in Bostock, it is clear that this momentum has not stopped. But there’s still work to do to ensure nationwide equality. Even after the recent SCOTUS ruling, in more than half of the 50 states, LGBTQ+ individuals can be denied housing, loans, and public accommodations. Although we can remain optimistic, it will likely take years for cases on these subjects to reach the Supreme Court. The fastest way to change the status of legal protections for LGBTQ+ individuals in the United States would be to pass federal legislation such as the Equality Act. Electing enough pro-equality legislators to carry out this charge will be difficult, but it’s a feasible goal I know we will continue to take seriously as a community.

Note: A version of this piece originally appeared in the Texas Undergraduate Law Review Fall 2019 Volume.

Isaac James is a GLAAD Campus Ambassador and rising junior at University of Texas at Austin studying government and LGBTQ studies. Interested in the intersections between education, government, and LGBTQ+ rights, Isaac is heavily involved in his local GLSEN chapter and hopes to pursue a joint MPP/JD to become a more effective advocate for LGBTQ-affirming policies at the local, state, and federal levels of government.

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