Equal Dignity in the Eyes of the Law: LBGTQ Rights in the 21 - PowerPoint Presentation

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Equal Dignity in the Eyes of the Law: LBGTQ Rights in the 21

st

Century

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Our Focus:

The LGBTQ Community

The Objective of This Group:

To Achieve Recognition of Their Rights

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The Strategy of This Group: Legislation, Judicial Interpretation and Protest

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The 20

th

Century had not been good for homosexuals.

Branded as criminals by legislatures and courts

Categorized as deviants and abnormal by sociologists and psychologists

Physically attacked by those who hated and feared them

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The justice system’s contempt for homosexuals was captured in the U.S. Supreme Court’s decision in

Bowers v. Hardwick

(1986).

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In this case, Michael Hardwick was arrested for engaging in consensual homosexual activity in violation of Georgia law.

Hardwick challenged the constitutionality of the law, arguing that the 14

th

Amendment’s guarantee of liberty protected his right to engage in consensual sexual relations with another man in the privacy of his home.

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The Supreme Court upheld the constitutionality of the Georgia law, concluding that the Constitution did not protect the rights of homosexuals to sodomize each other.

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Particularly insulting to the gay community was the concurring opinion of Chief Justice Warren Burger.

Burger grounded his decision in the classic writing of English Judge Sir William Blackstone.

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Burger used Blackstone’s words like a weapon:

“Blackstone described ‘the infamous crime against nature’ as an offense of ‘deeper malignity’ than rape, a heinous act ‘the very mention of which is a disgrace to human nature.’ To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”

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Burger’s opinion was more than a rejection of the constitutional claim of a homosexual litigant.

It was a condemnation of homosexuals as worse than criminals and barely deserving of categorization as human.

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Recall the case of

Dred Scott v. Sandford

and respond to this statement.

True or False:

The characterization provided by the Supreme Court of homosexuals in

Bowers v. Hardwick is similar to the characterization provided by the Supreme Court of blacks in Dred Scott v. Sandford.

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But in the 21

st

Century, things would begin to change.

Maybe it was because a new generation didn’t see homosexuality as scary or disgusting.

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Maybe it was because popular culture removed some of our ignorance and misperception

.

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Maybe it was because we believed there were other things we should be worried about.

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As had been the case with the rejection of ‘separate but equal,’ the Supreme Court was a driving force behind using the Constitution as justification for change.

Justice Anthony Kennedy, a conservative on many issues, was very progressive on the matter of homosexual rights.

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Actually, Kennedy’s first decision on homosexual rights came in 1996, in the case of

Romer v. Evans.

The voters of Colorado had approved a constitutional amendment preventing the government from protecting people from discrimination because of their homosexuality.

What this amendment did was to say, “we should be able to discriminate against homosexuals and government can’t stop us from doing it.”

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The Supreme Court, in a 6-3 decision, ruled this amendment to the Colorado Constitution to be in violation of the U.S. Constitution.

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Justice Kennedy wrote for the Court and explained,

“If the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest."

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As it did in

Brown,

the Supreme Court had employed the 14

th

Amendment’s Equal Protection clause to reject state-sanctioned discrimination.

And the Court laid the foundation for the recognition of the civil rights of the homosexual community.

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The Court’s decision in

Romer

was far from the perspective of the Court in

Bowers.

As the 21

st Century began, the Court would completely overturn Bowers.

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Lawrence v. Texas

(2003) involved the Texas law that made homosexual sexual activity a crime.

Justice Kennedy wrote for the Court in ruling the law unconstitutional and explained, “The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime…

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…Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”

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The overturning of the decision in

Bowers v. Hardwick

and the words used by Kennedy constituted a great victory for homosexuals.

Their situation would become even more promising in the following decade.

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During the 1990’s, Congress enacted the Defense of Marriage Act (DOMA), which restricted marriage to “only a legal union between one man and one woman as husband and wife.”

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In the Twenty-First Century, a number of states enacted laws that allowed same-sex marriage.

This raised a significant question: If Congress prohibited same-sex marriage and a state wanted to allow it, which would prevail?

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In

United States v. Windsor

(2013), the Supreme Court ruled DOMA’s restriction of marriage to a man and a woman to be unconstitutional.

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Once again, Anthony Kennedy wrote the decision of the Court, explaining that DOMA “tells those couples and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage…

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…The differentiation demeans the couple, whose moral and sexual choices the Constitution protects (

Lawrence

) and whose relationship the State has sought to dignify.”

Kennedy concluded by noting, “And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”

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Kennedy was striking mighty blows for the gay community.

His decision in

Windsor

not only cites the rights of the couple who seek to marry, it references the children of a homosexual marriage who need to know that their family is just as legitimate as any other family.

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There was still another obstacle to be removed.

Lawrence

declared unconstitutional laws prohibiting consensual sexual relations among homosexuals.

Windsor

rejected DOMA’s attempt to federalize the definition of marriage.

However, many states still had laws restricting marriage to the union of a man and a woman.

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In

Obergefell v. Hodges

(2015), the Supreme Court ruled that states’ failure to recognize the legitimacy of same-sex marriage violated the 14

th

Amendment.

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Justice Kennedy once again wrote for the Court:

“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 civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right."

 

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These were extraordinary decisions. However, they did not resolve every matter regarding the civil rights of the gay community.

 

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In the case of

Masterpiece Cakeshop v. Colorado

(2018), the Court upheld the right of a Christian baker to refuse to create a wedding cake for a same-sex couple.

 

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One thing that became clear is that the civil rights possessed by the gay community could shift dramatically in a matter of days.

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On June 12, 2020, the Trump Administration eliminated an Obama-era regulation prohibiting discrimination in health care against patients who are transgender.

The Administration argued that discrimination based on ‘sex’ meant gender, not sexual orientation.

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Within days, however, the U.S. Supreme Court handed down a decision that contradicted the Administration’s interpretation of the law.

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On June 15, 2020, the Supreme Court handed down its decision

Bostock v. Clayton County.

This case involved a number of employees who were fired because they were homosexual or transgender.

They brought suit under the Civil Rights Act of 1964, which prohibited employment discrimination based upon among other factors, “sex.”

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The employers argued that the Civil Rights Act’s prohibition of discrimination based upon “sex” simply meant discrimination based upon gender.

They argued that the key was to look at what the word meant in 1964, when the Act was passed-those who voted for it were not thinking of homosexuality or transgender issues.

Congress had numerous opportunities to include “sexual orientation” among the prohibitions of the Act, but every time they have declined to do so. That is because Congress doesn’t want the Act to apply to sexual orientation.

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The employees argued it was not that simple and cited the

Oncale

case, involving male-on-male sexual harassment, as the proper way to view their case.

The employer in

Oncale argued the Congress that enacted the 1964 Act did not intend “sex” to include male-on-male sexual harassment.A unanimous Court rejected that argument and ruled the Civil Rights Act did apply to male-on-male sexual harassment, even though it was not specified or even contemplated by the Congress that drafted it.

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Justice Scalia, perhaps the ultimate devotee to statutory language, wrote the opinion of the Court in

Oncale

,

upholding the broader application of “sex” in the Civil Rights Act and providing a strong argument for the employees in

Bostock.

“As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

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The Supreme Court ruled 6-3 in favor of the employees in

Bostock.

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Trump appointee Neil Gorsuch wrote for the Court, concluding

:

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“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

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Even in dissent, Justice Kavanaugh acknowledged the error of treating the gay community as undeserving of civil rights:

“The Court has previously stated, and I fully agree, that gay and lesbian Americans ‘cannot be treated as social outcasts or as inferior in dignity and worth.’”

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James

Esseks

of the American Civil Liberties Union captured it well when he said, “This is a huge victory for LGBTQ equality.”