''One, Inc. v. Olesen'' (1958)
''Boutilier v. Immigration and Naturalization Service'' (1967)
''Baker v. Nelson'' (1971)
In 1972, the Supreme Court dismissed the case of ''
Baker v. Nelson
''Richard John Baker v. Gerald R. Nelson'', 291 Minn. 310, 191 N.W.2d 185 (1971), was a case in which the Minnesota Supreme Court decided that construing a marriage statute to restrict marriage licenses to persons of the opposite sex "does not ...
'', which effectively denied that homosexual couples have a constitutional right to get married. This ruling was later overturned in ''
Obergefell v. Hodges
''Obergefell v. Hodges'', ( ), is a landmark LGBT rights case in which the Supreme Court of the United States ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protect ...
''.
''Doe v. Commonwealth's Attorney of Richmond'' (1976)
Two gay men anonymously challenged
Virginia
Virginia, officially the Commonwealth of Virginia, is a state in the Mid-Atlantic and Southeastern regions of the United States, between the Atlantic Coast and the Appalachian Mountains. The geography and climate of the Commonwealth ar ...
's
sodomy law, arguing that the law violated constitutional rights guaranteed by the
First
First or 1st is the ordinal form of the number one (#1).
First or 1st may also refer to:
*World record, specifically the first instance of a particular achievement
Arts and media Music
* 1$T, American rapper, singer-songwriter, DJ, and rec ...
, the
Fifth, the
Eighth, and
Fourteenth Amendments. In ''
Doe v. Commonwealth's Attorney of Richmond
''Doe v. Commonwealth's Attorney of Richmond'', 425 U.S. 901 (1976), is a decision by the Supreme Court of the United States which gave summary affirmation of a lower court ruling which upheld the U.S. state of Virginia ban on homosexual sodomy.
...
'', a three-judge panel on the
Eastern District of Virginia
The United States District Court for the Eastern District of Virginia (in case citations, E.D. Va.) is one of two United States district courts serving the Virginia, Commonwealth of Virginia. It has jurisdiction over the Northern Virginia, H ...
ruled, by 2 to 1, that the statute was not unconstitutional. On March 29, 1976, the Supreme Court summarily affirmed the decision without oral argument or written decision. Justices Brennan,
Thurgood Marshall
Thurgood Marshall (July 2, 1908 – January 24, 1993) was an American civil rights lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1967 until 1991. He was the Supreme Court's first African-A ...
, and
John Paul Stevens
John Paul Stevens (April 20, 1920 – July 16, 2019) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1975 to 2010. At the time of his retirement, he was the second-oldes ...
noted that they would have set the case for full consideration.
''National Gay Task Force v. Board of Education'' (1985)
''Bowers v. Hardwick'' (1986)
An openly gay man challenged the sodomy law of
Georgia
Georgia most commonly refers to:
* Georgia (country), a country in the Caucasus region of Eurasia
* Georgia (U.S. state), a state in the Southeast United States
Georgia may also refer to:
Places
Historical states and entities
* Related to the ...
based on an arrest he experienced in early July, 1982 in his home in
Atlanta
Atlanta ( ) is the capital and most populous city of the U.S. state of Georgia. It is the seat of Fulton County, the most populous county in Georgia, but its territory falls in both Fulton and DeKalb counties. With a population of 498,715 ...
. Michael Hardwick won this case in the
Court of Appeals for the Eleventh Circuit. The Circuit Court reasoned that because the Supreme Court had found there to be constitutional rights to childrearing and education, procreation, marriage, contraception, and abortion, it was inevitable that there is a constitutional right to private, consensual sodomy as well.
Mike Bowers
Michael Joseph Bowers (born October 7, 1941) was the Attorney General of Georgia from 1981 to 1997 before mounting an unsuccessful campaign for Georgia Governor. Bowers was a Democrat through 1994, at which time he joined the Republican Party. B ...
, the
Attorney General of Georgia
The Attorney General of Georgia is the chief law enforcement officer and lawyer for the U.S. state of Georgia. The officeholder is elected to a four-year term at the same time as elections are held for Governor of Georgia and other offices.
The ...
, appealed to the Supreme Court.
By five to four, the highest court overturned the 11th Circuit Court's decision in ''
Bowers v. Hardwick
''Bowers v. Hardwick'', 478 U.S. 186 (1986), was a landmark decision of the U.S. Supreme Court that upheld, in a 5–4 ruling, the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults ...
''. Justice
Harry Blackmun
Harry Andrew Blackmun (November 12, 1908 – March 4, 1999) was an American lawyer and jurist who served as an Associate Justice of the Supreme Court of the United States from 1970 to 1994. Appointed by Republican President Richard Nixon, Blac ...
, who in the previous case of ''Doe'' (see above) voted to uphold the Virginia ban on sodomy, now voted to strike down the Georgia ban, joining the three who dissented from ''Doe''. Justice White wrote the majority opinion; Chief Justice
Warren E. Burger
Warren Earl Burger (September 17, 1907 – June 25, 1995) was an American attorney and jurist who served as the 15th chief justice of the United States from 1969 to 1986. Born in Saint Paul, Minnesota, Burger graduated from the William Mitchell ...
and
Lewis F. Powell
Lewis Franklin Powell Jr. (September 19, 1907 – August 25, 1998) was an American lawyer and jurist who served as an Associate Justice of the Supreme Court of the United States from 1972 to 1987.
Born in Suffolk, Virginia, he gradua ...
wrote concurring opinions; also silently supporting the White opinion were
William Rehnquist
William Hubbs Rehnquist ( ; October 1, 1924 – September 3, 2005) was an American attorney and jurist who served on the U.S. Supreme Court for 33 years, first as an associate justice from 1972 to 1986 and then as the 16th chief justice from ...
(soon to become the Chief Justice) and
Sandra Day O'Connor
Sandra Day O'Connor (born March 26, 1930) is an American retired attorney and politician who served as the first female associate justice of the Supreme Court of the United States from 1981 to 2006. She was both the first woman nominated and th ...
. White used three modes of analysis in determining whether sodomy was constitutionally protected: 1) precedents dealing with childrearing and education, procreation, marriage, contraception, and abortion (as the 11th Circuit Court outlined), 2) the plausibility of finding that there is a fundamental right to engage in sodomy, and 3)
rational basis review
In U.S. constitutional law, rational basis review is the normal standard of review that courts apply when considering constitutional questions, including due process or equal protection questions under the Fifth Amendment or Fourteenth Amendment ...
. White rejected Hardwick's claim with all three modes.
"We first register our disagreement with the Court of Appeals and with
ardwick
Ardwick is a district of Manchester in North West England, one mile south east of the city centre. The population of the Ardwick Ward at the 2011 census was 19,250.
Historically in Lancashire, by the mid-nineteenth century Ardwick had grown from ...
that the Court's prior cases have construed the Constitution to confer a right of privacy that extends to homosexual sodomy and, for all intents and purposes, have decided this case."
"Accepting the decisions in these cases, ... we think it evident that none of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case. No connection between family, marriage, or procreation, on the one hand, and homosexual activity, on the other, has been demonstrated, either by the Court of Appeals or by
ardwick
Ardwick is a district of Manchester in North West England, one mile south east of the city centre. The population of the Ardwick Ward at the 2011 census was 19,250.
Historically in Lancashire, by the mid-nineteenth century Ardwick had grown from ...
"
Next, White rejected the prospect that the Court could "announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do." He canvassed the history of sodomy laws in the United States: "Proscriptions against that conduct have ancient roots. Sodomy was a criminal offense at common law, and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the union had criminal sodomy laws. ... Against this background, to claim that a right to engage in such conduct is 'deeply rooted in this Nation's history and tradition' or 'implicit in the concept of ordered liberty' is, at best, facetious." And White emphasized that the Court should exercise
judicial restraint
Judicial restraint is a judicial interpretation that recommends favoring the status quo in judicial activities; it is the opposite of judicial activism. Aspects of judicial restraint include the principle of stare decisis (that new decisions s ...
when possibly pronouncing a new "fundamental right."
Nor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause. The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution. That this is so was painfully demonstrated by the face-off between the Executive and the Court in the 1930's, which resulted in the repudiation of much of the substantive gloss that the Court had placed on the Due Process Clauses of the Fifth and Fourteenth Amendments. There should be, therefore, great resistance to expand the substantive reach of those Clauses, particularly if it requires redefining the category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority.
The last mode of analysis was the rational basis test. Hardwick had asserted "that there must be a rational basis for the law, and that there is none in this case other than the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable. This is said to be an inadequate rationale to support the law. The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed."
[
]
''Wisconsin v. Mitchell'' (1993)
''Romer v. Evans'' (1996)
''Equality Foundation of Greater Cincinnati v. City of Cincinnati'' (1998)
Voters of the city of Cincinnati
Cincinnati ( ) is a city in the U.S. state of Ohio and the county seat of Hamilton County. Settled in 1788, the city is located at the northern side of the confluence of the Licking and Ohio rivers, the latter of which marks the state line wit ...
held a referendum on "Issue 3," an amendment to the city charter, to do the same thing in that city as the voters of Colorado had done the previous year (see above - ''Romer v. Evans''). Issue 3 of Cincinnati was virtually identical to Amendment 2 of Colorado. The wording of the referendum was this:
NO SPECIAL CLASS STATUS MAY BE GRANTED BASED UPON SEXUAL ORIENTATION, CONDUCT OR RELATIONSHIPS.
The City of Cincinnati and its various Boards and Commissions may not enact, adopt, enforce or administer any ordinance, regulation, rule or policy which provides that homosexual, lesbian, or bisexual orientation, status, conduct, or relationship constitutes, entitles, or otherwise provides a person with the basis to have any claim of minority or protected status, quota preference or other preferential treatment. This provision of the City Charter shall in all respects be self-executing. Any ordinance, regulation, rule or policy enacted before this amendment is adopted that violates the foregoing prohibition shall be null and void and of no force or effect.
It passed on November 2, 1993, with approximately 62% in favor. It became Article XII of the city charter. Lesbian and gay activists in the city had already formed an organization called Equality Foundation of Greater Cincinnati (EFGC), and on November 8 the organization sued the city. Eventually, in 1995, the Sixth Circuit Court of Appeals
The United States Court of Appeals for the Sixth Circuit (in case citations, 6th Cir.) is a federal court with appellate jurisdiction over the district courts in the following districts:
* Eastern District of Kentucky
* Western District of K ...
upheld Issue 3.[ After the ''Romer'' ruling by the Supreme Court, EFGC asked the 6th Circuit to reconsider its decision in light of ''Romer'', but the 6th Circuit upheld Issue 3 a second time, reasoning that Issue 3 was distinguishable from Colorado's Amendment 2 because the former operated on a citywide level whereas the latter would have operated on a statewide level. EFGC then asked the Supreme Court to grant '']certiorari
In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
'', but on October 13, 1998, the Supreme Court denied the petition by a vote of 6 to 3.[''Equality Foundation of Greater Cincinnati v. City of Cincinnati'', No. 97-1795, 1998] Justices Stevens, Ginsburg, and Breyer - who were in the majority in ''Romer'' - dissented from the denial of petition, whereas Justices Kennedy, O'Connor, and Souter - who had also been in the majority in ''Romer'' - joined Rehnquist, Scalia, and Thomas in denying the petition.
In 2004, voters in Cincinnati voted on whether to repeal Article XII of the city charter, and it was successfully repealed.[
]
''Oncale v. Sundowner Offshore Services, Inc.'' (1998)
''Boy Scouts of America v. Dale'' (2000)
''Lawrence v. Texas'' (2003)
''Hollingsworth v. Perry'' (2013)
''United States v. Windsor'' (2013)
''Obergefell v. Hodges'' (2015)
''Bostock v. Clayton County'' (2020)
''Altitude Express, Inc. v. Zarda'' (2020)
''R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission'' (2020)
See also
*
* ''Goodridge v. Department of Public Health
''Goodridge v. Dept. of Public Health'', 798 N.E.2d 941 ( Mass. 2003), is a landmark Massachusetts Supreme Judicial Court case in which the Court held that the Massachusetts Constitution requires the state to legally recognize same-sex marriage ...
'' (2003), the court case that legalized same-sex marriage in Massachusetts
Same-sex marriage in Massachusetts has been legally recognized since May 17, 2004, as a result of the Massachusetts Supreme Judicial Court (SJC) ruling in ''Goodridge v. Department of Public Health'' that it was unconstitutional under the Mass ...
(first state to do so in the U.S.)
Notes
References
{{reflist
Lists of United States Supreme Court cases
LGBT-related lists