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On the Anniversaries of Lawrence and Windsor
Posted by: Claude J. Summers on 06/26/14
Last updated on: 06/30/14
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June 26, 2014, the anniversary of both Lawrence v. Texas and Windsor v. U.S.A., is a time to reflect on how these crucial Supreme Court rulings have altered the legal landscape of glbtq people in the United States.

In a decision handed down on June 26, 2003, Justice Anthony Kennedy, joined by Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter, and John Paul Stevens, ringingly declared that gay men and lesbians are "entitled to respect for their private lives . . . The state cannot demean their existence or control their destiny by making their private sexual conduct a crime."

Although the case was a challenge to a Texas law criminalizing "Homosexual Conduct" and the Supreme Court decision had the effect of declaring unconstitutional the thirteen remaining sodomy laws in the United States, the case was really about much more than the seldom-enforced criminal laws.

As Justice Kennedy wrote of the 1986 Supreme Court ruling Bowers v. Hardwick, which Lawrence reversed, "Its continuance as a precedent demeans the lives of homosexual persons." He declared emphatically: "Bowers was not correct when it was decided, and it is not correct today. Bowers v. Hardwick should be and now is overruled." What was at issue in Lawrence was the dignity of glbtq people and their relationships.

The ruling recognized the right of gay people to enjoy the same liberty taken for granted by heterosexual people. Moreover, it provided constitutional protection to same-sex relationships. In so doing, Lawrence altered the legal status of gay people in the United States and gave the glbtq movement a new credibility in debates about issues as diverse as adoption, parental rights, employment and licensing rights, service in the military, partner benefits, and, indeed, marriage.

As Dale Carpenter observed in his 2012 history of the case, "Before Lawrence, when it was possible for a state to criminalize the sexual lives of gay people, it was much easier to deny them a host of the other rights and privileges taken for granted by most Americans. Before Lawrence, it was logical to say the government could disfavor them in jobs where they might be regarded as role models, like police officers and teachers. It was possible to believe that they, like any class of criminals, should be watched around children, even their own, or should be altogether prohibited from adopting and raising kids. . . . And if their sexual conduct could be made a crime, it was no stretch to declare that their relationships need not be formally recognized by the law, including in marriage."

One year ago, in a pair of historic decisions, the Supreme Court invalidated the Defense of Marriage Act and let stand the District Court ruling by Judge Vaughn Walker that struck down California's pernicious Proposition 8, which banned same-sex marriage in the Golden State. The Court in its Hollingsworth v. Perry ruling thus returned marriage equality to our largest state and in its Windsor v. U.S.A. decision removed the chief barrier to federal recognition of same-sex marriages.

The effects of those rulings were felt very quickly. On June 28, 2013, the Hollingworth plaintiffs wed and since then thousands of other same-sex couples have married in California. With the invalidation of the Defense of Marriage Act, not only did Edith Windsor soon receive a refund of the $350,000 in federal estate taxes she was unjustly forced to pay when her spouse, Thea Spyer, died in 2009, but the Obama administration also moved rapidly to provide federal benefits to same-sex couples that had been blocked by DOMA.

Indeed, Windsor has proved to be far more than a case about a tax refund or even a case about federal benefits. Although the 5-4 ruling, written by Justice Kennedy and joined by Justices Breyer, Ginsburg, Kagan, and Sotomayor, did not itself establish a fundamental right to marry, it provided the rationale to make the case for a fundamental right to marry in the lawsuits that followed challenging state bans on same-sex marriage.

The decision declared that DOMA was enacted simply to injure same-sex couples. "The avowed purpose and practical effect of the law," Justice Kennedy wrote, "are to impose a disadvantage, a separate class, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States."

Moreover, Justice Kennedy added, DOMA also "humiliates tens of thousands of children now being raised by same-sex couples.[It] makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives."

Windsor has been at the forefront of all the recent federal district court decisions striking down state bans on same-sex marriage from Virginia to Michigan. In his moving conclusion to his decision invalidating Indiana's ban, Judge Young wrote of this string of decisions prompted by Windsor.

"The court has never witnessed a phenomenon throughout the federal court system as is presented with this issue. In less than a year, every federal district court to consider the issue has reached the same conclusion in thoughtful and thorough opinions--laws prohibiting the celebration and recognition of same-sex marriages are unconstitutional. It is clear that the fundamental right to marry shall not be deprived to some individuals based solely on the person they choose to love. In time, Americans will look at the marriage of couples such as Plaintiffs, and refer to it simply as a marriage--not a same-sex marriage. These couples, when gender and sexual orientation are taken away, are in all respects like the family down the street. The Constitution demands that we treat them as such."

Tellingly, his last sentence quotes Lawrence: "Today, the 'injustice that [we] had not earlier known or understood' ends."

Today would be a good time to express appreciation for the legal work of such individuals as James Smith, Evan Wolfson, Mary Bonauto, Jon Davidson, Shannon Minter, Therese Stewart, David Boies, Theodore Olson, and Roberta Kaplan, and to consider a donation to the legal organizations that pursued the lawsuits that led to rulings in Lawrence and Windsor and those that have followed: Gay and Lesbian Advocates and Defenders, Lambda Legal, the National Center for Lesbian Rights, Freedom to Marry, the ACLU, and the American Foundation for Equal Rights.

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