👩🏾‍⚖️Supreme Court Unit 11 – Gender and Sexual Orientation Rights

Key Concepts and Terminology

• Gender identity refers to an individual's inner sense of being male, female, or another gender
• Sexual orientation describes a person's emotional, romantic, and sexual attraction to people of a particular gender
• Discrimination involves treating someone unfairly or denying them opportunities based on their gender identity or sexual orientation
  • Includes employment discrimination, housing discrimination, and denial of services
• Equal protection under the law guarantees that all individuals receive the same rights and protections, regardless of their gender identity or sexual orientation
• Due process ensures that the government cannot deprive individuals of life, liberty, or property without fair procedures
• Fundamental rights are those rights considered essential to individual liberty and are protected by the Constitution
• Suspect classifications are groups of people who have historically faced discrimination and receive heightened scrutiny in equal protection cases

Historical Context

• LGBTQ+ individuals have long faced discrimination and marginalization in American society
• In the early 20th century, many states criminalized same-sex sexual activity through sodomy laws
• The Stonewall Riots of 1969 marked a turning point in the fight for LGBTQ+ rights, sparking the modern gay rights movement
• In the 1970s and 1980s, activists began challenging discriminatory laws and policies in court
• The AIDS crisis of the 1980s and 1990s further galvanized the LGBTQ+ community and highlighted the need for legal protections
• In the 1990s and 2000s, the focus shifted to issues like same-sex marriage and employment discrimination
• The Supreme Court has played a crucial role in shaping the legal landscape for LGBTQ+ rights

Landmark Supreme Court Cases

• Bowers v. Hardwick (1986) upheld Georgia's sodomy law, ruling that the Constitution did not protect a right to engage in same-sex sexual activity
• Romer v. Evans (1996) struck down a Colorado constitutional amendment that prohibited anti-discrimination laws protecting LGBTQ+ individuals
  • The Court held that the amendment violated the Equal Protection Clause by singling out a specific group for discrimination
• Lawrence v. Texas (2003) overturned Bowers and invalidated sodomy laws nationwide, recognizing a constitutional right to engage in private, consensual sexual activity
• United States v. Windsor (2013) struck down a key provision of the Defense of Marriage Act (DOMA), which had defined marriage as between a man and a woman for federal purposes
• Obergefell v. Hodges (2015) legalized same-sex marriage nationwide, holding that bans on same-sex marriage violated the Due Process and Equal Protection Clauses
• Bostock v. Clayton County (2020) held that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on sexual orientation and gender identity

Legal Arguments and Precedents

• Equal protection arguments assert that laws discriminating against LGBTQ+ individuals violate the Equal Protection Clause of the Fourteenth Amendment
  • Courts apply different levels of scrutiny depending on the classification at issue
  • Laws targeting suspect classifications like race or national origin receive strict scrutiny
• Due process arguments contend that laws infringing on fundamental rights, such as the right to privacy or the right to marry, violate the Due Process Clause
• The right to privacy, recognized in cases like Griswold v. Connecticut (1965) and Roe v. Wade (1973), has been invoked to protect intimate decisions related to sexuality and relationships
• The fundamental right to marry, established in cases like Loving v. Virginia (1967) and Zablocki v. Redhail (1978), formed the basis for the Obergefell decision on same-sex marriage
• Precedents like Romer and Lawrence laid the groundwork for later decisions expanding LGBTQ+ rights

Constitutional Foundations

• The Equal Protection Clause of the Fourteenth Amendment prohibits states from denying any person equal protection of the laws
  • Requires that similarly situated individuals be treated alike under the law
• The Due Process Clause of the Fifth and Fourteenth Amendments protects individuals from arbitrary government action and ensures fair procedures
  • Substantive due process protects certain fundamental rights from government interference
• The right to privacy, though not explicitly mentioned in the Constitution, has been recognized as a fundamental right stemming from the First, Third, Fourth, and Ninth Amendments
• The Ninth Amendment states that the enumeration of certain rights in the Constitution shall not be construed to deny or disparage other rights retained by the people
  • Has been interpreted to protect unenumerated rights, like the right to privacy
• The First Amendment's guarantees of freedom of speech, association, and petition have been invoked to protect LGBTQ+ expression and advocacy

Societal Impact and Cultural Shifts

• Supreme Court decisions on LGBTQ+ rights have had far-reaching societal and cultural impacts
• Rulings like Lawrence and Obergefell have helped to destigmatize same-sex relationships and promote greater acceptance of LGBTQ+ individuals
  • Same-sex marriage is now legal in all 50 states, and public support for same-sex marriage has increased dramatically
• Decisions like Bostock have expanded employment protections for LGBTQ+ workers, promoting greater equality in the workplace
• The visibility and representation of LGBTQ+ individuals in media, politics, and public life have increased significantly in recent decades
• Despite progress, LGBTQ+ individuals still face discrimination, harassment, and violence in many areas of life
  • Transgender individuals, in particular, continue to face significant barriers and discrimination
• The fight for LGBTQ+ equality has intersected with other social justice movements, such as the fight for racial justice and women's rights

Current Legal Debates

• While the Bostock decision expanded employment protections for LGBTQ+ individuals, there are ongoing debates about the scope of religious exemptions for employers who object to LGBTQ+ rights on religious grounds
• Transgender rights have become a focal point of current legal battles, particularly in areas like bathroom access, sports participation, and healthcare
  • Several states have passed laws restricting transgender individuals' access to bathrooms and limiting transgender students' participation in school sports
• There are ongoing debates about the balance between LGBTQ+ rights and religious liberty, particularly in cases involving businesses that decline to serve same-sex couples or transgender individuals
• The rights of LGBTQ+ parents and the recognition of same-sex parental rights continue to be litigated in courts
• There are also debates about the inclusion of LGBTQ+ topics in school curricula and the rights of LGBTQ+ students in schools

Future Challenges and Considerations

• While significant progress has been made, there is still work to be done to achieve full equality for LGBTQ+ individuals
• The makeup of the Supreme Court and lower federal courts will continue to shape the trajectory of LGBTQ+ rights
  • The appointment of conservative justices in recent years has raised concerns about potential rollbacks of LGBTQ+ protections
• Ongoing cultural and political backlash against LGBTQ+ rights may pose challenges for future progress
• The intersectionality of LGBTQ+ identities with race, class, disability, and other factors will continue to shape the fight for equality
  • LGBTQ+ people of color, for example, face unique challenges and discrimination
• Advances in technology, such as assisted reproductive technologies and genetic engineering, may raise new legal and ethical questions related to LGBTQ+ rights
• The global fight for LGBTQ+ rights will continue, with activists and organizations working to promote equality and combat discrimination in countries around the world