In our last Law and the Political Order class, we studied three Supreme Court privacy cases: Griswold v. Connecticut, Roe v. Wade, and Bowers v. Hardwick. The final (regarding privacy rights specific to consensual homosexual activity), stuck out to me for a lot of reasons, and felt even more relevant last Thursday, March 5, when the Supreme Court announced that it will begin hearing arguments about marriage equality next month, on Tuesday, April 28, 2015. Reflecting on the major roles of privacy rights and precedent discussed in class, and soon-to-be incorporated in these arguments, inspired me to explore the potential implications of Bowers v. Hardwick and other recent sex- and marriage-related Supreme Court decisions on the upcoming consolidated cases of Obergefell v. Hodges, Tanco v. Haslam, DeBoer v. Snyder, and Bourke v. Beshear. So here goes! There’s kind of a lot to take into account.
I’ll start with Bowers v. Hardwick, since it’s one of the earliest Supreme Court cases to consider homosexuality. It began in Georgia in 1986 when one Michael Hardwick was arrested and charged with sodomy for being found in bed with another man, and culminated in the question of whether the Constitution confers to each individual the right to sexual privacy, or allows each state to legislate punishments for consensual sexual activities. Ultimately, the Supreme Court ruled in favor of the latter, referencing the letters and spirits of several Constitutional statutes, including the Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments. This complicated the verdicts in Griswold v. Connecticut and Roe v. Wade, and set the precedent that consensual homosexual activity was not worthy of federal privacy protections. Thankfully, though (at least, in my opinion), the Supreme Court overturned this decision in 2003 in Lawrence and Garner v. Texas, which invalidated the sodomy laws of fourteen states and effectively decriminalized homosexual activity across America.
Similarly, in addressing state laws against interracial marriage, the Supreme Court issued two decisions, commencing with Pace v. Alabama in 1883. The precursor to a series of Jim Crow laws, Pace v. Alabama deemed certain marriages unworthy of federal privacy protections, family incentives, and full faith and credit requirements. Obviously, the Supreme Court overturned this decision, too (but only after eighty-four years of marriage segregation), in 1967 in Loving v. Virginia. This started when Richard Loving was arrested and charged with miscegenation in Virginia for marrying Mildred Jeter, a black woman, in the District of Columbia, and culminated in the question of whether the Constitution confers to each individual the right to marry and found a family, or allows each state to legislate punishments for interracial romantic and sexual relationships. In a unanimous decision, the Supreme Court supported Loving (in probably the most fitting case name ever before the Supreme Court), citing Virginia for violations of the Tenth and Fourteenth Amendments in particular. This established an incredibly important precedent: that, as then-Chief Justice Earl Warren wrote in his opinion of the Court, “the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the state”.
Despite this precedent, in 1996, the United States Congress enacted the Defense of Marriage Act to again restrict the freedom to marry (though, this time, to sexual and romantic minorities), until the Supreme Court heard United States v. Windsor in 2013. This began when Edith Windsor inherited her late wife’s New York estate, but was suddenly, heavily taxed for the property by the federal government after it refused to recognize her marriage and included marital tax exemption; and this culminated in nearly the same question as Loving v. Virginia: of whether the Constitution confers to each individual the right to marry and found a family, or allows each state to legislate deterrents for non-straight romantic and sexual relationships. In a fairly close vote (five to four), the Supreme Court ruled against the Defense of Marriage Act, referencing the Fourth, Fifth, and Fourteenth Amendments. This repealed its definition of “marriage” as only a “legal union between one man and one woman,” and set the precedent that the federal government may not refuse to recognize, protect, or provide benefits to spouses in non-heterosexual marriages certified by states with universal marriage equality.
But what do these precedents mean for the upcoming Supreme Court marriage equality cases? So much. In Obergefell v. Hodges, Tanco v. Haslam, DeBoer v. Snyder, and Bourke v. Beshear, the Supreme Court intends to answer the question of whether the Constitution confers to each individual the right to marry, regardless of sexual orientation, or allows each state to legislate their own definitions of traditional wedlock. Sound familiar? That’s why the precedents set forth in the opinions of the Court following Lawrence and Garner v. Texas, Loving v. Virginia, and United States v. Windsor all ought to directly influence this resolution. Lawrence and Garner v. Texas recognizing the significance of non-heterosexual intimacy, regardless of intent to procreate (or lack thereof), for instance, might affect the Court’s opinion of the significance of non-traditional marriages, as well. And Loving v. Virginia is even more likely to be cited by the Court, as its expansion of marriage equality can easily be applied again in these cases. But most recently, United States v. Windsor, its ripple effect, and the Supreme Court later declining to address appeals against marriage equality victories in several states, have really set the stage for them to officially address the freedom to marry. And Justice Ruth Bader Ginsburg agrees, calling now the time for marriage equality nationwide.