In a series of recent cases Gay Rights, the Supreme Court has helped the gay rights movement from the fringes of the legal arena to a place where they’re finally recognized as a fundamental part of American life.
But the future of same-sex marriage is far from assured, especially as state legislatures increasingly file anti-LGBTQ legislation this year.
Gay Rights: Bowers v. Hardwick
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In 1986, a gay man named Michael Hardwick challenged the constitutionality of a Georgia statute that made homosexual sodomy illegal.
The case went before the U.S. Supreme Court, and the majority held that the law violated Hardwick’s rights to privacy and protection under the Constitution’s due process clause.
Justice Lewis Powell, who voted with the majority, later described his vote as a mistake.
He said that Hardwick would have been subject to cruel and unimaginable punishment if the law had been followed.
In 2003, the Court overruled Bowers in Lawrence v. Texas to protect gay couples from state laws that criminalize same-sex marriage.
Kennedy cited a dissenting justice who argued that the Due Process Clause in the Fourteenth Amendment protects married couples’ personal decisions regarding their intimate relationships.
Gay Rights: Obergefell v. Hodges
In a five-to-one decision by the U.S. Supreme Court, state laws that prohibited same-sex marriage were found to violate the Constitution’s equal protection and due process clauses.
In a decision by Justice Anthony Kennedy, the majority opinion said the right to marry is a fundamental liberty under the Constitution because it embodies the highest ideals of love, fidelity, and devotion.
Americans continue to face
Despite the landmark ruling, there are still many challenges that LGBTQ Americans continue to face. For example, same-sex couples face harassment and discrimination in employment, housing, and public accommodations.
Several state legislatures have passed anti-LGBTQ bills this year, and many activist groups aim to deprive pregnant people of their rights.
The Supreme Court’s recent abortion case, Dobbs v. Jackson Women’s Health Organization, could also lead to challenges to the Obergefell decision.
Pavan v. Smith
In 2015, same-sex couples Marisa and Terrah Pavan and Jana and Leigh Jacobs petitioned the Supreme Court for a write of certiorari, arguing that Arkansas’ birth certificate law violated their rights as enshrined in the United States Constitution.
The state refused to name their biological parents on their child’s birth certificates, even though the couple was anonymous donors of sperm. This is the basis for their complaint.
Upon review, the Court found that the state’s statute was inconsistent with its decision in Obergefell and therefore violated the Fourteenth Amendment.
The Court also found that the state was giving opposite-sex married couples a form of legal recognition they did not have and, thus, was denying them access to the
“constellation of benefits that the Constitution has linked to marriage” that same-sex couples are entitled to.
The case is one of the first to ask the Court to define the parameters of its ruling in Obergefell.
It promises to be a hot topic for many future cases, but the Court’s refusal to hear it might signal that it is not ready to reverse or narrow the protections established by Obergefell.
303 Creative LLC v. Elenis
303 Creative LLC and its owner, Lorie Smith, are trying to use the First Amendment to block Colorado’s public accommodation law from requiring them to create wedding websites celebrating same-sex marriage.
They argue that the law violates their freedom of speech rights and freedom to practice religion.
If the Court decides against them, it may signal that self-identified artists are exempt from civil rights laws. This would hurt LGBTQ+ people as it may mean artists are not free to express their opinions and cannot communicate their messages.
case, which is part of a larger picture, concerns wedding vendors such as caterers and bakers who refuse to offer services to gay couples.
These cases typically ask the Supreme Court to balance anti-discrimination laws with commitments to free speech and exercise.
The Court dealt with a similar issue in Masterpiece Cakeshop four years ago. The Court ruled in favor of the baker, but on very narrow grounds which have no relevance to future cases.\
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