Abstract
This chapter summarizes the role of the U.S. Supreme Court as a national policy-making institution. As the final arbiter of law in the United States, the nine unelected justices of the Supreme Court contend their attitudes and decisions are tied to the political selection of justices. Extending the right to marry to same-sex couples through judicial means ignited a backlash in which religious groups and individuals turned to legislative solutions to contest the court's decision and its obligation to recognize marriage equality. Today, the same types of claims that once justified anti-LGBTQ laws are being used to advocate for religious and moral exemptions from laws designed to protect the dignity of LGBTQ people. With this turn back to religion, the cycle of subordination has come full circle. Future decision making from the court to extend the rights of LGBTQ citizens is directly tied to the changing composition of its members.
TopIntroduction
Since the Civil War, the United States has repeatedly struggled with how to balance the pursuit of antidiscrimination objectives and the protection of liberty interests, including those related to religious freedom (Ball, 2017). Not everyone has embraced these changes in the law, of course. As in previous periods in American history, the expansion of equality rights for some led others to complain that such expansions threatened their liberty rights.
The history of the LGBTQ rights movement in the United States has been a struggle for visibility, recognition, and the type of dignity that comes from being able to live an authentic life. Over the last 50 years, LGBTQ activists and advocates have engaged science, the law, religion, the media, and public opinion to make the case that LGBTQ people are a legitimate and deserving minority (Stein, 2019). At times, many have embraced the prevailing scientific understandings of LGBTQ identity; at other times, people have fought to change them (Bayer, 1987). LGBTQ citizens have argued for enhanced legal protections as members of a “politically unpopular group” (Lawrence v. Texas, 2003) or a suspect category (Windsor v. United States, 2013), and they have grappled with the distinction between status and conduct.1
On the other hand, their opponents have rejected the legitimacy of LGBTQ identities and have defended “conversion” therapy. Anti-LGBTQ advocates have argued in favor of what they characterize as traditional morality (Obergefell v. Hodges, 2015) and have branded LGBTQ legal protections “special rights” (Romer v. Evans, 1996).
Although the LGBTQ rights movement is often considered synonymous with legal challenges, it is important to remember the law is only one of the multiple and interlocking institutional forces that have historically regulated and subordinated LGBTQ people (Hirshman, 2013). In the early days of the gay-liberation movement, activists targeted psychiatry as the primary source of subordination, but the eventual declassification of homosexuality as a mental illness did not immediately translate to equality and acceptance (Bayer, 1987). The same can be said for Lawrence v. Texas (2003) and the demise of criminal sodomy laws. Despite the importance of that U.S. Supreme Court decision, the end to criminalization did not cause other legal disabilities to melt away (Miller, 2019). For 17 years after Lawrence, there were no antidiscrimination protections at the federal level until Bostock v. Clayton County (2020), which held that under Title VII, discrimination because of sex includes sexual orientation and gender identity (Miller, 2019). There are still no protections in many states.
Even the Holy Grail of marriage equality has proven to be only a partial victory, as it has underscored the persistent inequalities and disparities experienced by LGBTQ individuals2 (Robinson, 2014; Steinmetz, 2019) and prompted calls for broader and more comprehensive religious exemptions.
Key Terms in this Chapter
Public Accommodation: In the law of the United States, generally defined as facilities, publicly or privately owned, used by the public at large.
Ministerial Exception: Sometimes known as the “ecclesiastical exception,” a legal doctrine in the United States barring the application of antidiscrimination laws to religious institutions’ employment relationships with their “ministers.”
Subordination: Placement in a lower class, rank, or position; the act or process of subordinating someone or something or the state of being subordinated. As a prescriptive text, the Bible has been interpreted as justifying the subordination of heterosexuals to homosexuals.
Writ of Certiorari: Orders a lower court to deliver its record in a case so the higher court may review it.
Civility: The affording to others respect and the assumption of positive intentions until or unless otherwise demonstrated. More broadly, civility is practiced in a democratic society when people and policies can advance an agenda designed for the greater public good.
Judicial Review: Review by a court of law of some act or failure to act by a government entity, or a review by the U.S. Supreme Court of the highest courts in every state to decide the constitutionality of the acts of the legislative and executive branches within their jurisdictions.
Marriage Exceptionalism: Debates over marriage for same-sex couples focus on religious liberty accommodations for organizations and individuals opposed to same-sex marriage.
Civil Rights Act of 1964: Amended Civil War statutes that provide stronger protections for rights guaranteed by the Constitution and affect voting rights and discrimination in public accommodations.