Constitutional and statutory protections against legal discrimination based on homosexual orientation.
Although the U.S. Constitution does not directly assign any rights to persons based on their sexual orientation, the due process clauses of the Fifth and Fourteenth Amendments prohibit the federal and state governments from arbitrarily depriving a person of liberty. Also, the equal protection clause of the Fourteenth Amendment requires the states to provide all persons with the equal protection of the laws, and the Supreme Court has construed the due process clause of the Fifth Amendment as imposing a similar requirement on the federal government. These clauses would appear to offer gays and lesbians at least some security against the kinds of legal discrimination and disability that has long been their lot.
In Griswold v. Connecticut
By the mid-1980’s, the gay rights movement was finally achieving legislative relief from discrimination in employment, education, housing, and public accommodations. Although Congress did not amend federal civil rights laws to include the category of sexual orientation, a growing number of states, as well as cities and counties, responded with a variety of statutes and ordinances.
In Colorado, however, a backlash against such measures resulted in Amendment 2
Supreme Court precedents indicated that public accommodation laws prohibiting discrimination based on sexual orientation would not be applicable to private clubs that explicitly included opposition to homosexuality as integral parts of their missions. The precedents, however, did not make it clear whether the laws would be binding on large private clubs that had not explicitly advertised such views. This was the main issue in Boy Scouts of America v. Dale
Supporters of gay rights were more pleased with the ruling in Oncale v. Sundowner Offshore Service
Historically, gays and lesbians were banned from participation in the U.S. military services. In 1993, following a heated controversy, the services agreed to a compromise that was labeled “don’t ask, don’t tell.” This compromised continued the official ban on gay and lesbian membership in the armed services but did not require persons joining the military to say anything about their sexual orientation. However, any serviceman or woman found to have engaged in a homosexual practice would be subject to dishonorable discharge. Although many people questioned whether the policy had any rational basis, the majority of Supreme Court justices were apparently not prepared to find that the policy was unconstitutional. By 1999, the Court had refused to review five lower court rulings that upheld the don’t-ask-don’t-tell policy.
Many universities and law schools protested the military’s discriminatory policy by refusing to allow military recruiters to use their facilities. Congress responded with the Solomon Amendment
Proponents of gay rights were pleasantly surprised with the watershed case Lawrence v. Texas
Since the 1960’s, gay and lesbian activists have argued that they should have an equal
In 2000, Vermont’s high court held that its state marriage laws were unconstitutional, but it accepted the legislature’s enactment of civil partnerships, in which the state provided the same benefits that it gave to traditional marriages. In 2004, Massachusetts’s more liberal high court ruled that its state constitution guaranteed gays and lesbians nothing less than full equality in marriage rights. In November of that year, the U.S. Supreme Court declined to review a challenge to the resulting Massachusetts statute that permitted gay and lesbian couples to marry. In 2006, it was expected that eventually the Supreme Court would be asked to decide if other states could refuse to recognize the validity of these marriages under their laws and DOMA. In 2006, conservatives in Congress barely failed to get enough votes to initiate a constitutional amendment that would have permanently guaranteed that the full faith and credit clause would not apply. The controversial issue promised to provoke much heated debate and judicial litigation for many years into the future.
Gertsmann, Evan. The Constitutional Underclass: Gays, Lesbians, and the Failure of Class-Based Equal Protection. Chicago: University of Chicago Press, 1999. Kranz, Rachel, and Tim Cusick. Gay Rights. New York: Facts On File, 2005. Murdoch, Joyce. Courting Justice: Gay Men and Lesbians v. the Supreme Court. New York: Basic Books, 2001. Phelan, Shane. Sexual Strangers: Gays, Lesbians, and Dilemmas of Citizenship. Philadelphia: Temple University Press, 2001. Pierson, Jason. Courts, Liberalism, and Rights: Gay Law and Politics in the United States and Canada. Philadelphia: Temple University Press, 2005. Richards, David. The Case for Gay Rights: From Bowers to Lawrence and Beyond. Lawrence: Univ. Press of Kansas, 2005.
Assembly and association, freedom of
Boy Scouts of America v. Dale
Certiorari, writ of
Due process, substantive
Griswold v. Connecticut
Lawrence v. Texas
O’Connor, Sandra Day
Privacy, right to