The LGBTQ+ community has braved a treacherous path to achieve the rights it currently enjoys, however, LGBTQ+ rights and the Supreme Court, as well as general acceptance of the LGBTQ+ community, face an ongoing battle. Headlines often flash the latest in an array of attacks on LGBTQ+ rights, as the very legitimacy of the LGBTQ+ community is debated in open court. Make no mistake– LGBTQ+ rights are far from settled. Even California (a state known for its progressive views on LGBTQ+ rights) only recently amended its penal code such as to no longer inflict harsher, mandatory penalties on gay individuals than it would on straight individuals under the same circumstances. Therefore, the fight for LGBTQ+ rights necessarily revolves around the Supreme Court. This article will discuss the historic cases that resulted in our modern understanding of LGBTQ+ rights, and it will address the long road ahead in the fight to solidify the rights of the LGBTQ+ community.

LGBTQ+ Rights And the Supreme Court’s View

It should come as no surprise that the Supreme Court of the United States has had a troubled past with the LGBTQ+ community. Historic victories like Obergefell and Bostock mark a revolution in the Supreme Court’s view on LGBTQ+ rights, but this required a long and often contradictory road toward greater acceptance of the LGBTQ+ community, as the recent loss in Fulton demonstrates. This article will discuss these cases and more, below.

Bowers v. Hardwick: The Right to Privacy

Any discussion of the evolution of LGBTQ+ rights and the Supreme Court in the United States should begin with Bowers v. Hardwick, a Supreme Court decision that could have been a landmark civil rights case if it hadn’t gone so terribly wrong. In that case, police found Hardwick and his male partner engaged in oral sex in the privacy of Hardwick’s bedroom, and they were convicted of sodomy (defined by state law at the time as “any sexual act involving the sex organs of one person and the mouth or anus of another”). Hardwick appealed his conviction to the Supreme Court, arguing that the statute outlawing sodomy was unconstitutional.

The Supreme Court has long upheld the right to privacy in the bedroom. This has protected heterosexual couples in many ways, such as in the decision to buy and use contraceptives. However, in Bowers v. Hardwick, the Supreme Court determined that this right to privacy in the bedroom did not extend to homosexual couples. The Supreme Court construed Hardwick’s argument as “the right to engage in sodomy,” and it refused to consider this a “fundamental right” worthy of constitutional protection. Moreover, it refused to connect fundamental rights to family, marriage, and procreation to “homosexual activity.”

Lawrence v. Texas: The Right to Privacy, Revisited

Bowers v. Hardwick was a major loss in the fight for LGBTQ+ rights, but another case, Lawrence v. Texas, squarely reversed this decision. The Supreme Court struck down a Texas antisodomy statute, and it officially extended this right for adults to engage in private, consensual sexual activity to non-heterosexual couples.

Contrasting with Bowers v. Hardwick in both its result and form, the 6-3 decision in Lawrence v. Texas was a major victory for LGBTQ+ rights. Nonetheless, Justice Scalia’s fervent dissent marred this achievement and demonstrated the precariousness of LGBTQ+ rights. In his dissent, Justice Scalia considered the result in Lawrence v. Texas as an assault on morality. Scalia argued that “[s]tate laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity” collapse under the weight of this decision. Although we can liken his argument to a ridiculous combination of fear-mongering and ultra-conservatism, this narrative continues to circulate among conservative circles, and it threatens LGBTQ+ rights to this day.

Romer v. Evans: Protection from Discrimination

Lawrence v. Texas owes its success in large part to Romer v. Evans, an earlier case that marked the first major victory for LGBTQ+ rights.

Perhaps the most critical foundation in the fight for LGBTQ+ rights, Romer v. Evans struck down a Colorado law that banned the treatment of LGBTQ+ minorities as a protected class. This law mandated that LGBTQ+ individuals would have no recourse from discrimination. Fortunately, the Supreme Court determined that it was unconstitutional to deny any specific class from seeking equal protection under the law, even on the basis of sexual orientation.

Obergefell v. Hodges: Gay Marriage

Whereas the prior cases set a precedent that was foundational to our modern understanding of LGBTQ+ rights, Obergefell v. Hodges is the first in the modern set of cases that established revolutionary protections for the LGBTQ+ community. In Obergefell v. Hodges, the Supreme Court ruled that the constitution confers a fundamental right to marry, regardless of any person’s sexual orientation.

Obergefell v. Hodges is significant not only because it legitimized gay marriage across the United States, but also because of the reasoning the Supreme Court used to reach this decision. The Supreme Court rooted its argument in individual autonomy as it relates to intimate association, including children and families. This means that Obergefell v. Hodges formed a powerful precedent, broadly validating the LGBTQ+ community and promising more explicit protections to come.

Bostock v. Clayton County: Employment Discrimination (Title VII)

The next and most recent landmark victory for LGBTQ+ rights was Bostock v. Clayton County, which prohibited employment discrimination on the basis of sexual orientation.

Title VII of the Civil Rights Act has long protected employees from employment discrimination on the basis of race, color, religion, sex, or national origin. Although Title VII is widely accepted as protecting employment discrimination on its most straightforward grounds, conservative groups have long endeavored to interpret this clause as strictly as possible. Their argument is essentially that, because the term sexual orientation does not appear in the enumerated list, Title VII must not prohibit employment discrimination on such grounds. However, in Bostock v. Clayton County, the Supreme Court put this argument to bed. The Supreme Court determined that discrimination on the basis of homosexuality or transgender status is, necessarily, discrimination on the basis of sex. The argument protecting homosexuality is essential that, because we do not allow discrimination where a woman has a sexual relationship with a man, we cannot allow discrimination where a man has a sexual relationship with a man.

Notably, Bostock v. Clayton County has another layer of significance. The Supreme Court reached a 6-3 decision on Bostock v. Clayton County in June 2020, when the Supreme Court had a clear conservative majority and when the sitting president actively assaulted LGBTQ+ rights. These circumstances made Bostock v. Clayton County an unexpected victory. It seemed to spell out a bright future for the LGBTQ+ community, where the United States would continue to make strides in LGBTQ+ rights even with the cards stacked against it.

Fulton v. City of Philadelphia

Approximately one year later, the Supreme Court reached a very different decision in Fulton v. City of Philadelphia, where it prioritized religious freedom over LGBTQ+ rights.

Catholic Social Services (CSS), a religious, nonprofit foster care agency, refused to certify same-sex couples as foster parents, arguing that certifying same-sex couples would directly contradict their religious beliefs. The City of Philadelphia subsequently stopped referring foster children to CSS. The Supreme Court found that this decision violated CSS’s freedom of religion, and so it sided with CSS, enabling the organization to discriminate against same-sex couples due to a religious exemption to anti-discrimination laws.

Notably, the Supreme Court reached this decision unanimously. Even with such a skewed court, it is rare that all nine justices can ever agree on contentious issues. Some commentators view the decision in Fulton v. City of Philadelphia as critical for religious minorities. The ruling in Fulton v. City of Philadelphia, while a loss for the LGBTQ+ community, ensures that (1) religious minorities can have their day in court and (2) the government can only prevail in its infringement of religious liberties where it can prove it has a “compelling interest.”

The Road Ahead for LGBTQ+ Rights

The many landmark victories that have led to a revolution in LGBTQ+ rights are only the beginning. The most recent success in Bostock v. Clayton County has critical implications for employment, education, health care, housing, and more. However, the path toward greater acceptance and normalization of the LGBTQ+ community and LGBTQ+ rights requires much more work. As Fulton v. City of Philadelphia demonstrates, religious exemptions continue to reduce these grand achievements and limit the protections afforded to the LGBTQ+ community. This unending assault on LGBTQ+ rights proves the necessity of the Equality Act, a bill that would overhaul Title VII of the Civil Rights to provide more expansive protections and explicitly prohibit discrimination on the basis of sex, sexual orientation, and gender identity so that it can no longer be a point of debate. The Equality Act is currently trapped in the Senate, with the filibuster as its only obstacle.

Contact Pride Legal

If you or a loved one believe that your rights as an LGBTQ+ may have been infringed, we invite you to contact us at Pride Legal for legal counseling or any further questions. To protect your rights, hire someone who understands them.