On December 5, the Supreme Court will hear oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which puts the state’s public accommodations law against “sincerely held religious beliefs” opposing marriage equality.
After Colorado bakery owner Jack Phillips refused to sell a wedding cake to David Mullins and Charlie Craig because it was against his religious beliefs, the couple filed complaints with the Colorado Civil Rights Division, which determined that Phillips was at fault. In 2015, a Court of Appeals unanimously affirmed that decision, but Phillips maintains the state’s anti-discrimination law violates his First Amendment rights to freedom of speech and free exercise of religion.
The case could have serious implications for both anti-discrimination statutes and so-called religious freedom laws that enshrine anti-LGBT discrimination. But it’s far from the first time our rights have come before the Supreme Court. Below, we look at the high court’s history with the LGBT community.
One, Inc. v. Olesen (1958)
Founded in 1952, ONE, Inc. was the first LGBT organization in the U.S. to have its own offices. Its magazine, One: The Homosexual Agenda, came a year later and is believed to be the first mass-produced gay publication in America, sold through the mail and on newsstands in L.A.
In October 1954, the FBI and the Postmaster General of Los Angeles declared One obscene and refused to deliver it. The publishers sued and, though they lost the case and subsequent appeal, the took their case to the Supreme Court. Their victory marked the first time the high court sided with the LGBT community.
The magazine ceased publication in December 1969.
Bowers v. Hardwick (1986)
In 1986, the Supreme Court upheld Georgia’s sodomy ban by a 5-4 margin, maintaining “no connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated.”
Chief Justice Warren E. Burger twisted the knife further, declaring in the majority opinion that, “to hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching. “
But in his dissent, Justice Harry Blackmun accused his fellow justices of an “almost obsessive focus on homosexual activity.” He argued just because “certain, but by no means all, religious groups condemn the behavior at issue gives the State no license to impose their judgments on the entire citizenry.”
The verdict was overturned in 2003 by Lawrence v. Texas.
Romer v. Evans (1996)Brian Brainerd/The Denver Post via Getty Images
In 1992, Colorado voters approved an amendment to the state constitution that prevented any municipality from adding homosexuals as a protected class in anti-discrimination laws. Amendment 2 was approved by a margin of 53% to 47%: While surveys indicated Coloradans strongly opposed discrimination based upon sexual orientation, they also opposed what they saw as affirmative action based upon sexual orientation. Governor Roy Romer (above) opposed Amendment 2 but defended it in court.
Eventually the case made its way to the Supreme Court, where, in a 6–3 decision, the justices declared Amendment 2 was unconstitutional. In the majority opinion Justice Anthony Kennedy wrote, “These protections . . . constitute ordinary civil life in a free society.”
Not only did this victory protect the rights of LGBT Coloradans, it laid the groundwork for future SCOTUS cases striking down sodomy bans, DOMA and bans on same-sex marriage.
Boy Scouts of America v Dale (2000)Khampha Bouaphanh/Fort Worth Star-Telegram
After assistant Scoutmaster James Dale came out publicly as a gay man, he was expelled from the Boy Scouts. The New Jersey Supreme Court ruled that New Jersey’s public accommodations law required the BSA to readmit Dale but the Scouts appealed.
On June 28, 2000, SCOTUS held in a 5-4 decision that the Scouts had a right as a private organization to exclude someone if “the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints.”
Lawrence v. Texas (2003)Gerald Martineau/The Washington Post via Getty Images
While sodomy laws were not commonly enforced in the U.S., they were routinely used to target gay people for discrimination in employment, custody cases and other legal matters. And sometimes they were enforced: On September 17, 1998, four sheriffs barged into the apartment of John Geddes Lawrence Jr., and arrested him and Tyron Garner for having “deviate sex.”
Garner was visiting Lawrence with Robert Eubanks, with whom he had an on-again, off-again romantic relationship. When Eubanks saw Garner flirting with Lawrence earlier in the evening, he went outside and called the police, reporting “a black male going crazy with a gun.”
Of the four deputies who arrived on the scene, one claimed he saw Lawrence and Garner engage in anal sex, another reported seeing them engage in oral sex, and the last did not report seeing any sexual activity. But the two were charged with “engaging deviate sexual conduct namely, anal sex, with another man,” a Class C misdemeanor under Texas’ 1973 “homosexual conduct” law.
They fought the charges all the way to the Supreme Court, which ultimately overturned Bowers v. Hardwick and declared sodomy bans unconstitutional nationwide.
“The petitioners are entitled to respect for their private lives,” wrote Justice Kennedy. “The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”
United States v. Windsor (2013)
Edie Windsor and Thea Spyer married in Ontario in 2007, but after Spyer died, Windsor was forced to pay more than $360,000 in estate taxes because their union was not legal in the United States. Windsor went to court, claiming the Defense of Marriage Act was unconstitutional. And she won—with the majority decision claiming that, under DOMA, “same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways.”JEWEL SAMAD/AFP/Getty Images
Coming at the same time as the Supreme Court’s overturning of California’s Prop 8, United States v. Windsor marked the first time the highest court in the land addressed same-sex marriage. Within months, the federal government began extending benefits to same-sex couples that had married in states where it was legal. U.S. v. Windsor helped to lay the legal groundwork for the 2015 SCOTUS ruling that legalized marriage equality in all 50 states.
Hollingsworth v. Perry (2013)EWEL SAMAD/AFP/Getty Images
In May 2008, the California State Supreme Court ruled that same-sex couples’ access to marriage was a fundamental right under the state Constitution. Opponents managed to get Proposition 8, a voter amendment banning same-sex marriage, on the ballot in November of that year. With support from conservative Christian groups, Prop 8 passed and a lengthy court battle ensued. Proposition 8 was ruled unconstitutional by a federal court in 2010, and again by SCOTUS on June 26, 2013. In a 5-4 decision, the justices ruled that marriage-equality opponents didn’t have standing to appeal the federal court’s previous ruling, because they couldn’t prove that same-sex marriage caused them any actual injury.
The justices ruled that same-sex marriage opponents in California did not have standing to appeal the lower court ruling that overturned the state’s ban, known as Proposition 8. The ruling will remove legal battles for same-sex couples wishing to marry in California. However, the ruling did not directly affect other states.
Justice Antonin Scalia, the court’s most conservative justice, agreed with the majority opinion, while Justice Kennedy, who had previously ruled in favor of the LGBT community, did not. Writing for the minority, Kennedy said the “the basic premise of the initiative process [and] the essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around”
Obergefell v Hodges (2015)Alex Wong/Getty Images
In perhaps the most momentous decision affecting the LGBT community to date, the Supreme Court ruled on June 26, 2015, that the right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the 14th Amendment.
“As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death,” Justice Kennedy wrote the majority opinion. “It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
In a dissenting opinion, Justice Scalia wrote that the decision stymied the nationwide debate on marriage equality and deprived people of “the freedom to govern themselves.” He faulted the majority opinion for “diminish[ing] this Court’s reputation for clear thinking and sober analysis” and for “descend[ing] from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”Michael Hernandez/Anadolu Agency/Getty Images
While Obergefell provided a legal remedy for gay couples, in practical terms it still faced opposition in the months following the ruling: Kentucky clerk Kim Davis refused to give marriage licenses to same-sex couples, citing her religious beliefs.
In March 2016, a district court judge in Puerto Rico upheld the territory’s ban on same-sex marriage, insisting Obergefell v. Hodges did not apply there. And as late as October 2016, eight counties in Alabama still refused to issue marriage licenses to same-sex couples, following directions by Alabama Chief Supreme Court justice Roy Moore to maintain Alabama’s marriage equality ban.
While marriage equality is now the law of the land, efforts are still underway to undermine or overturn Obergefell: In October, a Mississippi law went into effect allowing businesses to refuse service to married gay couples. LGBT advocates have asked the Supreme Court to overturn a lower court ruling and declare the measure unconstitutional.