The 2003 landmark case of Lawrence v. Texas is perhaps the most important U.S. Supreme Court case concerning gay and lesbian rights and liberties to date. Although the 1996 case of Romer v. Evans was path breaking in its own right, ensuring that state referenda could not preempt localities from recognizing gays’ and lesbians’ civil rights if they so chose, Lawrence justly has been deemed the Brown v. the Board of Education of the gay and lesbian movement. In Lawrence, the U.S. Supreme Court found unconstitutional a Texas law that criminalized private same-sex sodomy (i.e., anal or oral sex). In doing so, the court overturned Bowers v. Hardwick (1986), which held that the court would defer to the states on all such questions, having the effect of upholding laws criminalizing sodomy in twenty-five states. Relying on the due process clause of the Fourteenth Amendment, as well as important privacy precedents such as Griswold v. Connecticut and Planned Parenthood v. Casey, the court declared in Lawrence that the right to privacy included nonpublic, same-sex intimate conduct between consenting adults.
The victory in Lawrence reignited gay and lesbian demands for equal marriage rights, which had been sought in the United States since at least the early 1970s.This first wave of demands was uniformly rejected by various state courts on the grounds that marriage was reserved for one man and one woman and that as such all citizens could participate in it if they so chose. The second wave emerged during the early 1990s in Hawaii, whose courts recognized the right to same-sex marriage, only to be overturned by a constitutional amendment passed by a referendum that had the support of an overwhelming majority. In apparent reaction to the possibility that one or several states might soon recognize same-sex marriage, Congress passed the Defense of Marriage Act (DOMA) in 1996 to clarify that the federal government would not recognize them. Many states also passed similar statutes and constitutional amendments to that same end, which have sometimes been called “mini DOMAs.” The third wave began in 1999 when the Vermont Supreme Court declared in Baker v. State that gays and lesbians should have equal access to the same rights and benefits as heterosexual couples. This led the state legislature to institute a parallel system of civil unions for gays and lesbians. In 2003, the Supreme Court of Massachusetts declared in Goodridge v. Department of Public Health that denying marriage licenses to gay couples violated the state constitution. To date, none of the many attempts to amend the Massachusetts Constitution to overturn this ruling have been successful.
Because earlier cases such as Stefan v. Perry (1988), which excluded gays from openly serving in the military, were largely based on the criminalization of sodomy upheld by Bowers, there has been some speculation in the wake of Lawrence that Congress might lift the ban. This speculation increased when the United States initiated a war with Iraq (as military exclusions of other minority groups have historically been relaxed when there is a greater demand for troops), and again in 2006 when the Democrats took control of Congress. Public opinion polls also indicate that a majority of the U.S. public favor overturning the current policy. Informally known as “Don’t Ask, Don’t Tell,” it has been upheld in federal court several times since its inception in 1993. It allows gays and lesbians to serve in the military, but only if they are not open about their sexual orientation, on the grounds that open service would undermine morale and unit cohesion.
Transgender issues also have been important in the LGBT movement for equal rights. Earlier concerns included arrests for cross-dressing, while more recent cases have addressed a variety of family concerns (such as marital status and child custody), public funding for sex reassignment surgery, and discrimination in employment. While the transgendered have been included in earlier versions of the Employment Nondiscrimination Act (ENDA), a bill that was originally introduced in Congress in 1976 to protect gays and lesbians against workplace discrimination but has yet to pass, the most recent version has excluded transgendered people from protection, despite the fact that all of the principal LGBT legal organizations have lobbied against such an excision.
- Currah, Paisley, Richard M. Juang, and Shannon Price Minter, eds. Transgender Rights. Minneapolis: University of Minnesota Press, 2006.
- Lehring, Gary L. Officially Gay:The Political Construction of Sexuality by the U.S. Military. Philadelphia:Temple University Press, 2003.
- Mezey, Susan Gluck. Queers in Court: Gay Rights Law and Public Policy. Lanham, Md.: Rowman and Littlefield, 2007.