As a gay man, it seems greedy to say that I was disappointed by the Supreme Court’s ruling in United States v. Windsor. After all, the partial revocation of the Defense of Marriage Act means that 150,000 same-sex couples now have access to thousands of federal benefits previously denied to them. Yet as much as the ruling itself benefits the gay rights movement, the reasoning behind the decision is less than satisfactory. The Court’s rhetoric does not actually address discrimination on the basis of sexual orientation. Instead it focuses more narrowly on discrimination against legally married same-sex couples. The court’s decision to remain silent on sexual orientation leaves a gaping void in our constitutional jurisprudence and threatens to create a state of de facto LGBT equality without constitutional support.
The Court’s silence on LGBT equality in 2013 is surprising considering the substantial foundation for LGBT rights it created with 2003’s Lawrence v. Texas. In Lawrence, the Supreme Court considered a Texas man’s challenge to a Texas law that made homosexual conduct illegal. With sweeping language, The Court ruled that anti-sodomy laws illegally interfered with gay Americans’ rights to privacy and liberty, striking down laws in 14 states in the process. Justice Anthony Kennedy wrote for majority that “When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element of a bond that is more enduring.” It would thus be demeaning to define the gay plaintiff’s claim as a mere right to engage in a certain sexual conduct just as it would be demeaning to define marriage as simply the right to engage in intercourse.
Although Kennedy relied on the 14th Amendment’s guarantees of liberty and privacy to reach his decision, he also hinted that the law might also violate the amendment’s Equal Protection Clause. The 14th Amendment’s guarantee of equal protection is weighed against the government’s interest in discrimination, with different classifications receiving different levels of scrutiny. For most classifications, any rational justification for the government’s discrimination will suffice. For other “suspect classes” like gender, religion and race, the government’s interest in discriminating must be highly compelling. As inspiring as Lawrence v. Texas was for its result, its true legacy has been to raise the potential that sexual orientation may be a characteristic so immutable, and intimately connected to one’s sense of self, that it merits Constitutional protection.
Rather than building on the rhetoric of Lawrence, Kennedy’s opinion in Windsor is actually more conservative. Throughout the opinion, Kennedy points out DOMA’s discriminatory and demeaning effect toward “same-sex couples” ignoring the fact that these couples and the animus toward them are defined by sexual orientation. As Justice Sandra Day O’Connor wrote in her concurring opinion to Lawrence, “there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal.” Just as the Texas sodomy law targeted homosexuals through their conduct, the true intent of DOMA is not to demean same-sex relationships but to demean the LGBT Americans who are inclined to enter them. By framing DOMA as an issue of same-sex couples and the states that choose to protect them, Kennedy neglects to address the rights and privileges of LGBT individuals.
As gays and lesbians gain in political clout and achieve increasing success through the political process, it becomes increasingly unlikely that the Court will receive more chances to uphold sexual orientation as a category protected by the Constitution. After all, the Court let ten years elapse between Lawrence and Windsor, and it may be another ten years before they agree to hear another case on gay rights. At that point, many of the laws discriminating against gays and lesbians will likely be moot. Nate Silver predicts that all but six states will have approved gay marriage by 2020, and Congress is now poised to consider legislation banning anti-gay housing discrimination. Gays and lesbians face the danger of achieving equality at the pleasure of the voting population with no guarantee that these rights will weather the storms of shifting public opinion. This puts LGBT Americans and activists in an awkward position: as much as we succeed in achieving political protections, we must also hope against hope that the Supreme Court will one day place our rights beyond the realm of political debate.