On June 26 2015, in Obergefell v. Hodges, a five-member majority of the United States Supreme Court struck down state bans on same-sex marriage as unconstitutional. For the LGBTQ rights movement, this victory capped over two decades of civil rights advocacy that sought equal treatment for same-sex couples vis-à-vis different-sex couples.
Justice Scalia dissented in Obergefell, and he began with a confession: same-sex marriage, he wrote, “is not of immense personal importance to me.” With this, Scalia glibly distanced himself from an issue that is impossibly close for many. His stated disinterest reads as cold against a backdrop featuring countless activists who spent lifetimes seeking basic recognition of their relationships and identities. Scalia’s Obergefell dissent is just one opinion in a long line of many in which he opposed LGBTQ rights because of both his personal indifference and his belief that minorities are legitimately subject to the whims of the majority.
Although LGBTQ-rights advocates convinced five members of the Court to rule in their favour on marriage, winning this battle was by no means the end of the war. Discrimination against LGBTQ individuals in public accommodations, housing, and particularly in the workplace is still widespread, and securing legal protections is a top movement priority. Since the 1970s, activists have sought—to no avail—new federal legislation that explicitly prohibits gender identity and sexual orientation discrimination. Presently, only twenty-one states and the District of Columbia statutorily forbid such discrimination, and those states tend to be in more liberal areas of the country.
In addition to pushing new legislation, attorneys are now forcefully arguing that discrimination “because of sex,” which is unlawful under federal law, includes discrimination because of sexual orientation and gender identity. In July of 2015, the Equal Employment Opportunity Commission (“EEOC”) held that “an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination” under existing federal law. On March 1, 2016, the EEOC went further by taking the unprecedented step of suing two companies for sexual orientation discrimination under that federal law. The EEOC’s novel interpretation is almost certain to reach the Court, and, with history as a guide, Justice Scalia’s absence may determine whether the LGBTQ rights movement wins this battle.
In Romer v. Evans, Justice Scalia dissented from a majority opinion which held that Colorado’s ballot-initiated repeal of all existing state ordinances prohibiting discrimination due to sexual orientation was unconstitutional. In finding that states may constitutionally target LGBTQ individuals for unfavourable treatment, Scalia reasoned that sexual minorities are a politically powerful group that must secure any desired “special treatment” (i.e., antidiscrimination protections) through the legislature. In Romer, Scalia again demonstrated his distance from the lives of real LGBTQ people: “because those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities” and “have high disposable income,” they are capable of fending for themselves. Justice Scalia seemingly did not recognize (or care) that many LGBTQ people are poor, live in conservative communities, and cannot count on legislatures to protect them.
Similarly, in Lawrence v. Texas, Justice Scalia dissented from a majority opinion which found that states’ criminal prohibitions of same-sex “sodomy” are unconstitutional. He argued that criminalising sodomy furthers citizens’ beliefs “that certain forms of sexual behavior are ‘immoral and unacceptable,’” and that constitutionally protected liberties are limited to those defined by accepted majoritarian traditions. Signaling again his indifference to LGBTQ lives, Scalia equates same-sex sexual intimacy with “bigamy, adultery, adult incest, bestiality, and obscenity”—apparently appreciating no ethical or dignitary differences.
Justice Scalia’s departure from the Court breathes new life into a vision of the Constitution that accepts as a core function protecting the vulnerable from majoritarian oppression. For LGBTQ individuals, the reverberations will be tangible. Lives will be affected by how a newly constituted Court interprets the reach of antidiscrimination laws, whether religious beliefs may trump antidiscrimination protections, and the contours of sexual liberty. Rather than creating and highlighting distance, perhaps our next Justice will bring LGBTQ people closer to all Americans’ hearts and minds.
Editorial Note: This is the latest post in the OxHRH series on how Justice Scalia’s judicial approach and reasoning has influenced rights-based protections across significant areas of the law.