Eleanor Finch
In the United States, the Supreme Court has ruled that sexual orientation is protected under the Constitution. 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 Court concluded that state classifications distinguishing between opposite- and same-sex couples violated equal protection principles and were therefore unconstitutional. This decision was based on the Due Process Clause of the Fifth Amendment, which includes both substantive due process and equal protection principles.
| Characteristics | Values |
|---|---|
| Sexual orientation protected under the constitution | No |
| Sexual orientation protected under equal protection principles | Yes |
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What You'll Learn
The Supreme Court's decision in Romer v. Evans
In 1996, the Supreme Court's decision in Romer v. Evans struck down a state constitutional amendment that overturned local ordinances prohibiting discrimination against homosexuals, lesbians, or bisexuals. The amendment also prohibited any state or local government action to remedy discrimination or grant preferences based on sexual orientation.
Romer v. Evans was a landmark case that predated the signature Supreme Court case on homosexual conduct, Lawrence v. Texas. The case was argued between October 1995 and May 1996. In Romer, the Court implicitly seems to have used a higher standard than a rational basis standard of review, which would have been enough to find the amendment valid.
Romer v. Evans set the stage for Lawrence v. Texas (2003), where the Court overruled its decision in Bowers. It also set the stage for the Supreme Court ruling striking down Section 3 of the Defense of Marriage Act in United States v. Windsor (2013) and the Court's ruling striking down state bans on same-sex marriage in Obergefell v. Hodges (2015). Justice Anthony Kennedy authored all four opinions, and was joined by Justices Ruth Bader Ginsburg and Stephen Breyer in every one.
In 1992, Colorado voters approved Amendment 2, an amendment to the Colorado state constitution that would have prevented any city, town, or county in the state from taking any legislative, executive, or judicial action to recognise homosexuals or bisexuals as a protected class. Amendment 2 was a statewide anti-gay initiative prohibiting all branches of state government in Colorado from passing legislation or adopting policies prohibiting discrimination against lesbians, gay men or bisexuals based on their sexual orientation.
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The Due Process Clause of the Fifth Amendment
In 1996, the Supreme Court used the Due Process Clause to strike down a state constitutional amendment that overturned local ordinances prohibiting discrimination against the LGBTQ community and prohibited any state or local governmental action to either remedy discrimination or grant preferences based on sexual orientation. This decision, known as Romer v. Evans, set a precedent for protecting the rights of LGBTQ individuals under the Due Process Clause.
The Due Process Clause was also central to the Obergefell Court case, which concluded that state classifications distinguishing between opposite- and same-sex couples violated equal protection principles and were therefore unconstitutional. The Court viewed marriage laws prohibiting the licensing and recognition of same-sex marriages as causing grave and continuing harm to same-sex couples, amounting to "disrespect and subordination".
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The Obergefell Court's conclusion on state classifications
In Obergefell v. Hodges, the U.S. Supreme Court ruled that states must recognise marriages between same-sex couples. The case was decided by a 5-4 vote, with Justice Anthony Kennedy issuing the swing vote and writing the opinion for the majority. Justice Kennedy summed up the decision, saying that same-sex couples:
> "hope... not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right."
The Supreme Court's ruling in Obergefell v. Hodges wiped the Sixth Circuit's decision off the books and provided further support for the conclusion that sexual orientation classifications should be treated as inherently suspect and presumptively unconstitutional in all contexts. While the Court stopped short of holding that sexual orientation classifications are inherently suspect and should always be subject to heightened scrutiny, many lower courts have already reached that conclusion and the ruling strongly reinforces the logic of those decisions. The Court's explicit invocation of equal protection strongly suggests that the reasoning of this decision will extend beyond the marriage context and invalidate other laws or state actions.
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The Fourteenth Amendment
> All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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 1996, 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 either remedy discrimination or grant preferences based on sexual orientation. This was decided under the Due Process Clause of the Fifth Amendment, which includes equal protection principles (as incorporated through the Fourteenth Amendment).
In 2015, the Obergefell Court concluded that state classifications distinguishing between opposite- and same-sex couples violated equal protection principles and were therefore unconstitutional. The Court viewed marriage laws prohibiting the licensing and recognition of same-sex marriages as working a grave and continuing harm to same-sex couples, serving to "disrespect and subordinate them".
Therefore, the Fourteenth Amendment protects citizens from discrimination based on sexual orientation, as it guarantees equal protection under the law.
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Evolving societal norms and their impact on liberty rights
The Obergefell Court further advanced liberty rights for same-sex couples by concluding that state classifications distinguishing between opposite-sex and same-sex couples violated equal protection principles and were thus unconstitutional. This decision recognised the harm caused by marriage laws that prohibited the licensing and recognition of same-sex marriages, reflecting a shift in societal norms and understanding of homosexuality.
These court rulings demonstrate the evolving nature of societal norms and their impact on liberty rights. As societal attitudes and understandings change, so too do interpretations of constitutional protections. This dynamic interplay between societal norms and legal protections ensures that liberty rights remain responsive to the needs and values of a diverse and evolving society.
However, it is important to acknowledge that the protection of sexual orientation under the constitution is not universally recognised. The interpretation of constitutional protections can vary across different legal systems and jurisdictions, and the fight for LGBTQ+ rights remains an ongoing struggle in many parts of the world. Nonetheless, the precedent set by cases like *Romer v. Evans* and *Obergefell* underscores the potential for legal systems to adapt and expand liberty rights in response to evolving societal norms.
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Frequently asked questions
Yes, in the United States, the Supreme Court has ruled that state classifications distinguishing between opposite- and same-sex couples violate equal protection principles and are therefore unconstitutional.
It means that laws prohibiting the licensing and recognition of same-sex marriages are unconstitutional, as they serve to "disrespect and subordinate" same-sex couples.
The Obergefell Court case concluded that state classifications distinguishing between opposite- and same-sex couples violated equal protection principles and were therefore unconstitutional. The Court noted that evolving societal norms inform the liberty rights of same-sex couples, and that new insights about homosexuality reveal "unjustified inequality" with respect to traditional concepts of marriage.
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 either remedy discrimination or grant preferences based on sexual orientation.
Yes, in addition to the Obergefell and Romer v. Evans cases, there are other equal protection cases based on sexual orientation that have been decided by the courts.
