By Lisa Keen
The two high-profile opinions pending release this month from the U.S. Supreme Court could end up being as historic as the Loving v. Virginia decision, which struck down laws against marriage for interracial couples in 1967. They could be as dramatic as Roe v. Wade, which struck down most restrictions against abortion in 1973. And, they’re already getting as much attention now, if not more, than pending decisions on the Voting Rights Act and affirmative action.
If the Supreme Court makes definitive rulings in U.S. v. Windsor (regarding the Defense of Marriage Act) and Hollingsworth v. Perry (regarding California’s Proposition 8), the opinions will certainly warrant inclusion on any Top Ten LGBT Cases list, maybe even among the Top Five.
Here are the cases that would make most LGBT legal activists’ Top Five LGBT Supreme Court opinions list today:
1-Lawrence v. Texas
Vote: 6 to 3
Ruling: A Texas law making it a crime for two adults of the same sex to have consensual sexual relations in private violates the Due Process Clause.
Impact: The ruling not only struck down the Texas law but those in eight other states. It also put a stop to the use of various other entities -employers, the military, family courts, and others–from using the existence of the laws to justify various other forms of discrimination against LGBT people. Many believe it is the decision that most paved the way for the success of much later litigation, including on marriage, to assert equal protection rights for LGBT people.
2-Bowers v. Hardwick
Vote: 5 to 4
Ruling: A Georgia law making it a crime for two adults of the same sex to have consensual sexual relations in private was constitutionally permissible.
Impact: Politically and legally, Hardwick lashed out against an LGBT community that was growing dramatically, in part due to legal gains and in part due to a need to address the devastating effects of the HIV/AIDS epidemic. It was cited by hundreds of later decisions in courts across the nation to justify all various restrictions on the rights of LGBT people.
3-Romer v. Evans
Vote: 6 to 3
Ruling: The voter-approved Amendment 2 to the Colorado constitution seeking to block any state or local jurisdictions from prohibiting discrimination based on sexual orientation violated the Equal Protection clause of the U.S. Constitution.
Impact: It overturned Colorado’s hostile law and put the brakes on a devastating trend of other states passing or attempting to pass similar initiatives. It also put governments on notice that they could not pass laws that disfavored LGBT people simply because a majority of voters dislike LGBT people.
4-One v. Olesen
Vote: Per Curiam (no dissenters)
Ruling: Without comment, the court overturned a Ninth Circuit decision that allowed the public mail service to refuse delivery of a gay and lesbian newsletter, which a Los Angeles postmaster had deemed pornographic.
Impact: This marked the first time the high court protected the rights of LGBT people specifically, and it did so in the context of harassment that began during the McCarthy Era of witch hunts against communists and homosexuals. By upholding the rights of gays and lesbians to express themselves politically and poetically, and to share those expressions among themselves through the mail, the court left open the important means of communication that the LGBT political and cultural movements needed to exist and grow.
5-Hurley v. GLIB
Vote: 9 to 0
Ruling: The First Amendment right to freedom of association trumped a state law prohibiting discrimination on account of sexual orientation in places of public accommodation.
Impact: This ruling not only weakened the ability of states to prohibit discrimination, it was the beginning of a trend in which people who did not like gays argued that the First Amendment gave them a right to express their disapproval in public contexts. In short order, numerous cases emerged, including Boy Scouts v. Dale (in 2000). Even today, the argument is raised, most recently in Christian Legal v. Martinez, testing the right of school officials to require student campus groups to treat all students equally.