Gay Marriage: How Did We Get Here?

News: Government
by Christine Niles  •  •  June 26, 2015   

A look back on the legal path to same-sex "marriage"

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WASHINGTON, D.C., June 26, 2015 ( - Same-sex "marriage" is now the law of the land, with the U.S. Supreme Court decision in Obergefell v. Hodges declaring a right for gay couples to "marry" under the U.S. Constitution. The decision was handed down today, June 26, just before Gay Pride weekend celebrations in New York City and San Francisco, consistent with two previous Court cases that opened wide the door to same-sex "marriage": Both Lawrence v. Texas and United States v. Windsor, also authored by the same justice who wrote today's opinion, Anthony Kennedy, were handed down on June 26.

A decade ago such a ruling would've been unthinkable. Today, the Court decision went as many expected. So how did we get here? How did conduct that was once criminalized in all states achieve the status of a fundamental right under the Constitution?

Obergefell didn't drop from the sky; a string of U.S. Supreme Court cases preceding it have slowly paved the way for this constitutional right to gay "marriage."

Bowers v. Hardwick (1986)
Bowers v. Hardwick was the first U.S. Supreme Court case to deal explicitly with the question of homosexual sex. It centered on a Georgia statute that criminalized sodomy, just as many other state statutes did at the time. After Michael Hardwick was arrested for engaging in same-sex acts in his bedroom and prosecuted under Georgia law, Hardwick filed suit in federal court claiming the law was unconstitutional. The Court voted 5–4 to uphold the statute, finding no "fundamental right to engage in homosexual sodomy" in the Constitution. The case would later be overturned in the 2003 case Lawrence v. Texas.

Romer v. Evans (1996)
Ten years would pass before the High Court addressed the issue of same-sex sodomy again, this time chipping away at the ruling in Bowers. Colorado citizens had voted 53 to 47 percent to amend the state constitution to prohibit making homosexuals a protected class; their concerns were that affirmative action would be applied to unduly favor homosexuals. Colorado governor Roy Romer opposed the measure, challenging its constitutionality in court. When the case came before the U.S. Supreme Court, the justices voted 6–3 to strike down the amendment, holding that it lacked any rational relationship to a legitimate government interest. Justice Anthony Kennedy, writing for the majority, instead found the amendment was based on unjust "animus" toward homosexuals.

Justice Antonin Scalia, writing for the dissent, cited Bowers when he argued, "If it is rational to criminalize the conduct, surely it is rational to deny special favor and protection to those with a self-avowed tendency or desire to engage in the conduct."

Boy Scouts of America v. Dale (2000)
Four years later, the Supreme Court would uphold the right of the Boy Scouts of America to exclude openly homosexual adults from its ranks. James Dale was expelled as assistant scout master of a New Jersey troop when the Boy Scouts found out he was co-president of Rutgers' Lesbian/Gay student alliance. Dale challenged his expulsion in court, arguing the Boy Scouts had engaged in unlawful discrimination by kicking him out for his involvement in homosexual advocacy.

When the case eventually came before the Supreme Court, it ruled in a narrow 5–4 decision in favor of the Boy Scouts. To force the Boy Scouts to include members that actively dissented against the group's values would violate the group's right to freedom of association, guaranteed by the First Amendment to the Constitution. In the words of then-Chief Justice William Rehnquist, "freedom of association ... plainly presupposes a freedom not to associate."

Lawrence v. Texas (2003)
The case that opened the door wide to same-sex "marriage" is Lawrence v. Texas. Considered a landmark decision, the case began with the arrest and prosecution of John Lawrence and his gay partner Tyron Garner for violating a Texas anti-sodomy statute criminalizing "deviate sexual intercourse with another individual of the same sex." Police had found both men in Lawrence's bedroom engaging in sodomy and charged them with breaking the law. Lawrence challenged his prosecution in court, arguing that the law violated his right to equal protection and due process under the Fourteenth Amendment to the U.S. Constitution.

Although the appellate court rejected these arguments, the U.S. Supreme Court found them to be of merit, ruling 6–3 in favor of Lawrence. The Court held specifically that the statute violated Lawrence's right to due process. Justice Anthony Kennedy, writing for the majority, found, "The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime." Kennedy, who had been among the dissenters in Bowers v. Hardwick, took the occasion to overturn what he considered to be bad precent. "Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled."

Justice Scalia, again writing for the dissent, condemned the majority opinion.

Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. ... [T]he Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.

United States v. Windsor (2013)
United States v. Windsor, considered another landmark legal ruling, struck down Section 3 of the Defense of Marriage Act (DOMA) defining marriage as between a man and a woman. In another narrow 5–4 ruling, the Supreme Court found that DOMA violated both the Due Process and Equal Protection clauses of the U.S. Constitution. Justice Kennedy, once again writing for the majority, wrote that "DOMA writes inequality into the entire United States Code" and its "principal purpose is to impose inequality ... ."

Separate dissents were written by Chief Justice John Roberts, Justic Scalia and Justice Samuel Alito, joined by Justice Clarence Thomas. Justice Scalia in particular predicted the court decisions that would overturn state gay "marriage" bans based on the ruling in Windsor:

As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.

By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.

And right on cue, state gay "marriage" bans fell in state after state following the decision in Windsor. On the very same day that case was handed down, in fact, California legalized same-sex "marriage," and 24 states afterwards followed suit in the following months. And as of the Court's ruling today, all 50 states are now required to recognize same-sex "marriage."

What impact this ruling will have on the religious free exercise rights of those who morally object to gay "marriage" remains to be seen, but judging by the multiple businesses that have been harassed or forced to shut down over their refusal to cater to gay weddings, the future bodes ill for them.


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