How America’s History of Queerness Exposes a Fundamental Generational Conflict
America’s acceptance of queerness is rapidly evolving— in 1996, just 27% of Americans approved of gay marriage. Today, 71% say they support it. While America often purports to be a champion of acceptance, there exists a complicated history of queer acceptance and discrimination in constitutional law that begs to differ.
During the Cold War, America experienced a sharp increase in xenophobia and condemnation of alternative lifestyles and movements. In the mid-twentieth century, the infamous Red Scare was accompanied by a lesser-known ‘Lavender Scare’— the purging of homosexuals from government positions on account of their “lesser character.” The government recognized the opportunity for foreign powers to blackmail queer officials based on their sexuality, deeming the very presence of homosexual employees a security threat. Instead of protecting queer employees, the government doubled down on the criminalization of homosexuality. The government view of homosexuality as a potential liability fed into the emerging narrative in the media that homosexuality was a dangerous mental illness that required legal prosecution. This view of homosexuality as a mental defect extended decades– in fact, the American Psychological Association (APA) did not remove homosexuality from the official list of mental illnesses until 1973. Up until that point, the medicalization of homosexuality allowed for the prosecution of queer people without concern for constitutional rights. Because homosexuality was classified as a mental illness (and not technically a crime), the government remained within their rights to suspend the Constitutional rights to due process of their suspects. LGBTQ+ people were effectively second-class citizens in America— an idea reflected by U.S. court cases of the twentieth century.
The 1986 Supreme Court case Bowers v. Hardwick epitomizes the journey of queer people to enshrine their identity in the law. Michael Hardwick was observed in his home by a Georgia police officer engaging in sexual activity with another man and was subsequently arrested for violating Georgia’s anti-sodomy laws. Although a Court of Appeals initially agreed with Hardwick’s argument that the anti-sodomy law was unconstitutional, the Georgia Attorney General appealed to the Supreme Court. The Attorney General was granted certiorari— meaning that his request to have a lower court decision reviewed by a higher court was approved— and the Supreme Court heard Hardwick’s case. A divided court ruled with Bowers in a 5-4 opinion that the Constitution did not protect same-sex activity, thereby legitimizing Georgia’s anti-sodomy laws.
This endorsement of queer discrimination was supported by valid law until 2003, when the Supreme Court heard Lawrence v. Texas. Houston police entered John Lawrence’s home and found him engaging in same-sex sexual activity. The defendants were then convicted of violating Texas’ “Homosexual Conduct Law”, which criminalized same-sex intimacy. An appeals court initially sided with Texas, ruling along the Bowers precedent and upholding the legality of queer discrimination. The appeals court found that because the Constitution does not provide protection for same-sex intimacy, laws prohibiting queer sex were legally sound. However, the Supreme Court overturned Bowers in a 6-3 ruling, relying on the fact that sodomy laws violate the due process clause of the 14th amendment. The late Justice Kennedy interpreted the right to liberty “under the Due Process Clause” as “giv[ing citizens] the full right to engage in their conduct without intervention of the government.” Based on this reasoning, the Court found that the Due Process clause of the 14th amendment protected the right to privacy without government interference.
Twelve years after the verdict in Lawrence, groups of same-sex couples sued their respective states on account of bills banning same-sex marriage and refusing to recognize such unions. The plaintiffs in the cases argued that these marriage statutes violated the Due Process clause of the 14th amendment and Civil Rights Act. These cases came together at the Supreme Court level in Obergefell v. Hodges. The Court ruled in favor of the couples (Obergefell et al.) in a divided 5-4 opinion. This decision resulted in the federal legalization of gay marriage and was widely considered a massive victory for queer groups.
However, three Justices dissented– among them Justice Clarence Thomas, one of the judges in the majority decision on Dobbs. In Dobbs v. Jackson Women’s Health Organization, Jackson Women’s Health Organization challenged a Mississippi Act that prohibited nearly all abortions. The Court ruled in a 6-3 decision that the right to abortion conferred by Roe v. Wade was invalid because it was not explicitly included in the Constitution. Justice Clarence Thomas filed a concurring opinion encouraging the reexamination of same-sex marriage and intimacy. Thomas’ argument to ‘revisit’ these cases suggests that he would also advocate for the overturning of these cases in favor of less protections. The argument for overturning the case of Obergefell v. Hodges goes against the majority of Americans who support of gay marriage.
The Court’s decision rested on the idea that the right to marriage was among the fundamental liberties guaranteed under the Due Process clause in the Constitution. According to the majority opinion, the right to marry is linked to individual autonomy and the intimate association between two people— which is not subject to interference of the state. However, even in this seemingly straightforward legal issue, the court was harshly divided on the verdict. Chief Justice John R. Roberts dissented, arguing that the Constitution did not directly protect the right to marriage, and therefore that the homophobic marriage laws were legally sound. Roberts’ belief that the Constitution must include a direct mention of marriage to protect it brings in the idea of originalist interpretation.
Originalism – the concept of reading the Constitution with original intent– is a traditionally conservative idea that argues for the Constitution to be interpreted in accordance with the direct wishes of the Constitution’s framers. Original intent is part of the support for the overturning of Roe— and constitutes a danger to other privacy cases like that of Loving v. Virginia (guaranteeing interracial marriage). If original intent is to be applied as a method of interpretation, then the Supreme Court will effectively force Americans to be bound by laws and opinions of the 18th century. If public support for queer marriage has increased by 44% in only 26 years, how much can public opinion be expected to have changed in the last 233 years?
America claims to be a progressive nation— the fact that the vast majority of Americans are in support of gay marriage exemplifies that ideal. However, American institutions are fundamentally constructed in order to advance the interests of the elite at the expense of marginalized groups. Even before the controversial Dobbs opinion, the Supreme Court’s approval had reached a new low of 40%. America is diversifying, and the prioritization of straight, white, male interests is becoming increasingly infeasible.
According to the 2020 census, nearly 4 in 10 Americans identify as a race other than white— the first time in the nation’s history where the white population has declined. Yet, the Supreme Court’s recent decision in Dobbs indicates the Court’s growing preference for an originalist interpretation of the Constitution. As America becomes more diverse and the population further supports the rights of marginalized groups, American institutions seem unwilling to adapt. This legal analysis directly conflicts with the vast majority of Americans’ opinions, and it is only a matter of time before the Court and the opinion of the American public become irreconcilable– if they have not already.
Greta Filor is a junior at Brown University, double concentrating in Economics and History. She is a staff writer for the Brown Undergraduate Law Review and can be reached at greta_filor@brown.edu.