Eleanor Finch
The US Constitution does not explicitly protect sexual orientation. However, the Supreme Court has struck down state constitutional amendments that discriminate against the LGBTQ+ community. In Romer v. Evans, the Court ruled that a state amendment that overturned local ordinances prohibiting discrimination against the LGBTQ+ community was unconstitutional. The Court has also held that Section 3 of DOMA violates basic due process and equal protection principles applicable to the Federal Government. Despite these rulings, there is a lack of willingness to provide new constitutional protections for sexual orientation and gender identity, indicating a lack of care for the safety and wellbeing of the LGBTQ+ community.
| Characteristics | Values |
|---|---|
| Protects sexual orientation | No |
| Protects gender identity | No |
| Protects against discrimination | Yes |
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What You'll Learn
The Supreme Court's decision in Romer v. Evans
The US Constitution does not explicitly protect sexual orientation. However, the Supreme Court has ruled that the Constitution's Equal Protection Clause prohibits discrimination on the basis of sexual orientation.
In the 1996 case of Romer v. Evans, the Supreme Court struck down a state constitutional amendment that overturned local ordinances prohibiting discrimination against the LGBTQ community. The amendment also prohibited any state or local government action to remedy discrimination or grant preferences based on sexual orientation. The Court held that the amendment violated the Equal Protection Clause of the Fourteenth Amendment, which states that no state shall "deny to any person within its jurisdiction the equal protection of the laws".
The Romer v. Evans decision was significant because it was the first time the Supreme Court explicitly recognised that sexual orientation is a protected class under the Equal Protection Clause. This means that laws that discriminate on the basis of sexual orientation are subject to heightened scrutiny and are more likely to be struck down as unconstitutional.
However, despite this decision, the Supreme Court has not consistently protected the LGBTQ community. In the case of *United States v. Windsor*, the Court held that Section 3 of the Defense of Marriage Act (DOMA) violated the Due Process Clause of the Fifth Amendment, which is incorporated into the Fourteenth Amendment. This decision recognised that the federal government must provide equal protection to same-sex couples with respect to marriage.
Despite these rulings, some argue that the Supreme Court has not gone far enough to protect the LGBTQ community. There is a perception that the Court is reluctant to provide new constitutional protections for sexual orientation and gender identity, and that it does not sufficiently care about the safety and wellbeing of LGBTQ individuals.
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The Due Process Clause of the Fifth Amendment
In the case of *Romer v. Evans* (1996), the Supreme Court struck down a state constitutional amendment that overturned local ordinances prohibiting discrimination against the LGBTQ community. The Court also prohibited any state or local governmental action to either remedy discrimination or grant preferences based on sexual orientation. This case was decided under the Due Process Clause of the Fifth Amendment, which suggests that the Court recognised that sexual orientation falls under the equal protection principles of the Fifth Amendment.
However, it is important to note that the Court has not explicitly stated that the Fifth Amendment protects sexual orientation. In fact, there is criticism that the Court does not care about the safety and wellbeing of the LGBTQ community, and therefore is unwilling to provide new constitutional protections for sexual orientation and gender identity.
Furthermore, in the case of *Moreno* (1973), the Court rejected arguments that a state amendment protected the freedom of association rights of landlords and employers or would conserve resources for fighting discrimination against other groups. This suggests that the Court may not be willing to interpret the Due Process Clause of the Fifth Amendment as protecting sexual orientation.
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Equal protection of the laws
The US Constitution does not explicitly protect sexual orientation. However, the Fourteenth Amendment states that:
> No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
In Romer v. Evans (1996), the Supreme Court struck down a state constitutional amendment that overturned local ordinances prohibiting discrimination against the LGBTQ+ community. The Court found that the amendment violated the equal protection clause of the Fourteenth Amendment. This decision affirmed that the Constitution protects LGBTQ+ individuals from discrimination based on sexual orientation.
In another case, *United States v. Windsor*, the Supreme Court held that Section 3 of the Defense of Marriage Act (DOMA) violated "basic due process and equal protection principles applicable to the Federal Government." The Court's decision in this case further solidified the recognition of equal protection for LGBTQ+ individuals under the Constitution.
Despite these rulings, the Supreme Court has not explicitly extended constitutional protections to sexual orientation. The Court's decisions in these cases were based on interpretations of equal protection and due process clauses, rather than a direct acknowledgment of sexual orientation as a protected class. As a result, the level of protection afforded to LGBTQ+ individuals can vary depending on the specific circumstances and the interpretation of the law by the courts.
Advocates for LGBTQ+ rights continue to push for explicit constitutional protections for sexual orientation and gender identity. They argue that such protections are necessary to ensure the safety and well-being of the LGBTQ+ community and to prevent discrimination and harm. However, achieving these protections requires a shift in the Court's approach and a willingness to prioritise the rights and well-being of LGBTQ+ individuals.
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The safety and wellbeing of the LGBTQ+ community
The Supreme Court has also rejected arguments that state amendments protect the freedom of association rights of landlords and employers, or would conserve resources for fighting discrimination against other groups. This indicates a lack of willingness to provide new constitutional protections for sexual orientation and gender identity, and a disregard for the safety and wellbeing of the LGBTQ+ community.
The Fourteenth Amendment, which states that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws", should provide some protection for the LGBTQ+ community. However, in practice, this does not seem to be the case.
The Fifth Amendment's Due Process Clause, which includes both substantive due process and equal protection principles, has also been used to argue for the protection of the LGBTQ+ community. Despite this, the community continues to face discrimination and a lack of legal protection.
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The freedom of association rights of landlords and employers
The US Constitution does not explicitly protect sexual orientation. However, the Supreme Court has interpreted the Constitution to prohibit discrimination against the LGBTQ+ community. In *Romer v. Evans*, the Supreme Court struck down a state constitutional amendment that overturned local ordinances prohibiting discrimination against the LGBTQ+ community and prohibited any state or local governmental action to remedy discrimination or grant preferences based on sexual orientation. This decision was based on the Equal Protection Clause of the Fourteenth Amendment, which states that no state shall "deny to any person within its jurisdiction the equal protection of the laws".
While the Constitution does not explicitly mention sexual orientation, the Supreme Court has interpreted it to provide some protections for the LGBTQ+ community. However, there is still a lack of comprehensive constitutional protections for sexual orientation and gender identity, as evidenced by the ongoing debates and legal challenges surrounding this issue.
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Frequently asked questions
No, it does not.
Yes, in 1996, the Supreme Court struck down a state constitutional amendment that overturned local ordinances prohibiting discrimination against the LGBTQ+ community.
The Supreme Court's ruling meant that the state could not enforce any law that would abridge the privileges or immunities of US citizens, nor deny any person within its jurisdiction the equal protection of the laws.
Yes, in addition to the US Constitution, the Fifth Amendment and the Fourteenth Amendment also offer some protections against discrimination based on sexual orientation.
