The Supreme Court of the United States (SCOTUS) was established in 1789, but it didn't rule on a case that directly influenced gay rights until nearly 170 years later. Since then, the highest federal court in the country has weighed in on about a dozen other LGBTQ rights-related cases, which have had powerful impacts on the gay rights movement and the lives of LGBTQ Americans.
The Supreme Court's First Gay Rights Case
SCOTUS's first gay rights case focused on the First Amendment—specifically, how the rights of free speech and press apply to homosexual content.
In 1954, Los Angeles' postmaster Otto Olesen ordered federal postal authorities to seize ONE, a homosexual magazine (the nation's first), arguing that the magazine's content was "obscene."
One, Inc., the magazine's publisher, sued Olesen. A lower court ruled in favor of the government and the Ninth Circuit Court of Appeals agreed with this ruling.
However, SCOTUS took up One, Inc. v. Olesen in 1958 and ruled in favor of One, Inc. with little comment, citing only its recent decision in Roth v. United States (1957).
In this earlier case, the Justices found that obscene speech is not protected by the First Amendment. But they further noted that "sex and obscenity are not synonymous" and ideas with "even the slightest redeeming social importance," including controversial ideas, are protected.
First Gay Marriage License Denied by SCOTUS
After One, Inc. v. Olesen, SCOTUS saw few gay rights-related cases for the next few decades, but a couple of cases are worth noting.
In 1970, Jack Baker and Michael McConnell became the first gay couple to apply for a marriage license—they were denied. In the subsequent case Baker v. Nelson (1971), the Minnesota Supreme Court ruled that state laws limiting marriage to opposite-sex couples did not violate the U.S. Constitution.
When the couple appealed, SCOTUS dismissed the case "for want of a substantial federal question," effectively establishing the case as precedent.
Then, in 1986, another SCOTUS ruling, Bowers v. Hardwick, upheld a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults.
'Special Rights' Overruled
Compared with the preceding decades, the 1990s and 2000s were relatively busy for SCOTUS on gay rights issues.
In 1996's Romer v. Evans, SCOTUS found that a Colorado voter initiative violated the Constitution's equal-protection clause.
The initiative sought to prohibit all levels of government from recognizing LGBTQ individuals as a protected class, arguing such protections would be "special rights." But SCOTUS disagreed with this view. "These protections," Justice Anthony Kennedy wrote, "constitute ordinary civil life in a free society."
Two years later in Oncale v. Sundowner Offshore Services, Inc., SCOTUS ruled that same-sex harassment is covered under Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination on the basis of sex, race, color, national origin and religion.
SCOTUS: Boy Scouts Can Exclude Gay Individuals
In Boy Scouts of America v. Dale (2000), SCOTUS ruled that the Boy Scouts of America have a constitutional right to bar membership to gay individuals because opposition to homosexuality is part of the organization's "expressive message."
This ruling leaned heavily on Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995), in which SCOTUS found that private organizations could exclude groups that presented messages contrary to the organization's messages. In that case, Boston's St. Patrick's Day parade organizers excluded a group that wanted to march under an Irish gay pride banner.
Despite the 2000 Boy Scout ruling, in 2013, the group ended its ban on openly gay youths participating in its activities. Two years later, it ended its ban on openly gay adult leaders. And in 2017, the group announced it would begin accepting members based on the gender listed on their application, allowing transgender boys to join. As for the Boston St. Patrick's Day parade, in 2014, organizers voted to allow gay groups to march openly, but then briefly reinstated a ban in 2017. After fierce backlash, the ban was lifted once again.
In 2003, the nation saw a landmark case for the gay rights movement: Lawrence v. Texas. In its ruling, SCOTUS struck down a Texas anti-sodomy law and overturned Bowers v. Hardwick. For the majority opinion, Justice Kennedy wrote: "The state cannot demean their [gays'] existence or control their destiny by making their private sexual conduct a crime."
String of Court Rulings Lead to Gay Marriage
The 2010s saw a string of SCOTUS rulings that ultimately made gay marriage legal in the country.
United States v. Windsor (2013) deemed the Defense of Marriage Act unconstitutional, Hollingsworth v. Perry (2013) effectively upheld a lower court's ruling to overturn California's controversial Proposition 8 ballot initiative that banned same-sex marriage, and Obergefell v. Hodges (2015) found that all bans on same-sex marriage were unconstitutional.
In this latter case, the court cited numerous previous cases in its decision, including Lawrence v. Texas, United States v. Windsor, and Loving v. Virginia, the landmark 1967 decision that struck down laws banning interracial marriage.
Obergefell v. Hodges set up an inevitable clash between civil and religious liberties, with some businesses arguing they don't have to provide for gay marriages because doing so goes against their religious beliefs.
In Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), SCOTUS sided with the Masterpiece Cakeshop—which refused to make a wedding cake for a gay wedding—on the grounds that the commission didn't employ religious neutrality when it evaluated the discrimination case against the bakery.
Workplace Discrimination
In 2019, SCOTUS took on three new cases—Altitude Express Inc. v. Zarda, Bostock v. Clayton County, Georgia and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission—on whether gay and transgender workers are protected from workplace discrimination.
In a surprising 6-3 decision that came in June 2020, the court ruled that LGBTQ workers are protected under Title VII (which prevents discrimination on the basis of sex), and cannot be fired for their sexual orientation or gender identity.
“It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex," Justice Neil Gorsuch wrote in the majority opinion. He was joined by Chief Justice John G. Roberts and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
The ruling was seen as a major victory for LGBTQ rights.
