Abstract
Few issues in American politics, sexual or otherwise, inspire as much passion as the struggle over civil rights for members of the LGBTQ community. The passion associated with this issue stems from a clash of values and social movements. The undeniable passion that suffuses the issue is apparent to anyone who has witnessed a public debate or read a court transcript on the subject. This chapter will focus on court cases that have played a role in creating rights for members of the LGBTQ community and subsequent legislative actions.
TopThe Public Agenda And Lgbtq Rights
The public agenda of the United States has witnessed a remarkable shift in LGBTQ rights and visibility in the 50 years since the Stonewall uprising—and in just the last few years, LGBTQ people have won the right to marry, have hit a record high in representation on television, and have seen the first openly gay major-party presidential candidate.
But the path of LGBTQ rights in America has not been a simple one. And just as advocates battled with American culture, they fought as well in the courts, including the U.S. Supreme Court. Over the last half-century, the court first denied and then affirmed that LGBTQ people have the right to consensual sex and then the right to marry whom they choose.
During that time, Americans' views of homosexuality also began to change, due in large part to the efforts of activists and organizations who sought to tell stories of gay people in the news media and popular culture (Sweeny & Canon, 2020). In addition to capitalizing on national events such as the AIDS crisis and “Don’t Ask, Don’t Tell,” the media brought gay characters to the fore in popular television shows such as Ellen and Will and Grace. The impact of the change in narrative—the change in the nation’s understanding of gays and lesbians—was essential for the increased legal recognition of their civil rights.
Before Stonewall1 and continuing in the 50 years since, lesbian, gay, bisexual, and transgender people have regularly turned to the courts for protection against mistreatment or to overturn laws that targeted them. From HIV–based discrimination, to the fight for marriage equality, to President Donald Trump’s attempt to ban transgender people from the military, courts across the country have played a key role in the story of LGBTQ rights in America.
Key Terms in this Chapter
Rational Basis: A reason or ground (as for legislation or an action by a government agency) that is not unreasonable or arbitrary and that bears a rational relationship to a legitimate state interest.
Social Movement: A loosely organized effort by a large group of people to achieve a particular goal, typically a social or political one. This may be to carry out, resist, or undo a social change. It is a type of group action and may involve individuals, organizations, or both.
Judicial Activism: The tendency of judges to deviate from past court decisions, which allows them to consider their own preferences before issuing a ruling.
Same-Sex Marriage: A legally recognized marriage in which two people of the same sex live together as a family.
Civil Union: A legally recognized union of a same-sex couple with rights like those of marriage.
Strict Scrutiny: A test for courts that government may not burden or restrict a person's free exercise of religion unless it demonstrates that the restriction furthers a compelling government interest and is done through the least restrictive means.
Certiorari: A writ or order by which a higher court reviews a decision of a lower court.