In Lawrence, Kennedy wrote for just five of the six justices who considered sodomy laws to be unconstitutional; while Justice Sandra Day O’Connor provided a sixth vote in concurrence with the judgment, she did not join Kennedy’s opinion to the extent that it overruled the 1986 decision in Bowers v. Hardwick (which had upheld state sodomy laws). O’Connor said she would simply strike Texas’ law on equal protection grounds. (“Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.”)
In Windsor, Kennedy wrote for just five justices. One of those five, Elena Kagan, had been on the bench for only two and a half years and apparently had to recuse herself from a similar DOMA challenge that had reached the high court sooner because she likely discussed it while serving as Solicitor General.
If the court had taken that first case, Gill v. Office of Personnel Management, the court likely would have rendered a tie vote and DOMA would still be in effect in most states.
Often forgotten, too, is the enormous influence the sitting president had on the impact of each decision.
The administration of President George W. Bush took no action in 2003 to see that the Lawrence decision was quickly and thoroughly respected by various federal programs, such as the military’s “Don’t Ask, Don’t Tell” law banning openly gay service members.
It continued enforcing the ban that had been approved by a Congress that pointed to sodomy laws to justify its hostile treatment of gays. Bush said nothing about the Lawrence decision and the White House press secretary brushed it off as a “state matter.”
Then, in 2004, Bush spoke in support of a Congressional bill that sought to ban marriage for same-sex couples.
In contrast, President Obama spoke out quickly in support of the Supreme Court’s decision in Windsor and ordered his administration “to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly.”
Legal activists responded differently following both decisions, too. LGBT legal activists were still wary of mounting lawsuits that would wind up in front of the Supreme Court. Even as late as 2009, they thought it was “too early” to put another issue to a vote at the Supreme Court.
Prior to the Windsor decision, 12 states and the District of Columbia allowed same-sex couples to marry. One year later, 19 states and D.C. have marriage equality and at another 15 states have had courts declare their bans on same-sex couples marrying unconstitutional.
Prior to the Windsor ruling, 18 percent of the U.S. population lived in states with marriage equality. Today, nearly half (48.8 percent) of the U.S. population lives in marriage equality states.
U.S. Deputy Assistant Attorney General Pam Karlan shared with DOJ Pride attendees earlier this month some of her memories of having clerked for Supreme Court Justice Harry Blackmun in 1986 when he authored the dissent to the court’s Bowers v. Hardwick decision, upholding state laws prohibiting private consensual sex between same-sex adults.
Karlan said she suggested to Blackmun that the majority opinion was resting on “an unexamined assumption that gay people were different in a way that permitted denying them” the right to intimate relations. When Blackmun wrote his dissent, she said, he made a subtle change to her suggested language, saying the majority opinion was based “on the assumption that homosexuals are so different from other citizens….”
“In making those changes, Justice Blackmun was doing two things,” said Karlan. “First, he was emphasizing that gay people are citizens – that is, true members of our national community. But second, and just as importantly, he was rejecting the idea that there is an ‘us’ for straight people – and that gay people are somehow a ‘them.’ And he was laying the groundwork for an understanding that the central constitutional claim is not just one about liberty; it is about equality as well.”
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