Implementing Equality: Judicial Revisions to Public Policy on Gay Rights

• In Event: Gender, Sexuality, and Constitutional Equality

Abstract

Since the civil rights movement accomplished many of its paramount successes via litigation, progressive advocacy communities have tended to regard courts as essential bulwarks against the legal enshrinement of oppression targeting politically vulnerable minorities. Advocates of LGBTQ equality are no different, identifying the judiciary as critical to eradicating discrimination on the basis of sexual orientation, witnessed notably in the movement's having championed a series of Supreme Court decisions expanding gay rights from the mid-1990s to the present. Standing alone, however, holdings by the Supreme Court revising the operative scope of civil rights for sexual minorities represent only a change in the formulation of public policy rather than effecting immediate changes in policy implementation. Judicially directed reformulations of public policy thus require cooperation by those responsible for policy implementation, and compliance rates with judicial directives may vary, especially on matters of public policy over which states retain considerable sovereignty. In this article, I analyze state responses to two prominent Supreme Court decisions on public policies that implicate the constitutional rights of sexual minorities: Lawrence v. Texas, decriminalizing private, consensual, nonprocreative intercourse, and Obergefell v. Hodges, holding state same-sex marriage bans unconstitutional. While adherence to Obergefell was swift and nearly universal, compliance outcomes for Lawrence have been uneven, as some states continue to enforce statutes that are materially equivalent to the "homosexual conduct" law at issue in Lawrence. I argue that compliance with Lawrence has lagged compared to Obergefell for three reasons: (1) linguistic imprecision in the Lawrence decision; (2) divergent views of the right(s) at issue in each case, including variation in the constituencies affected by each instance of litigation; and (3) the absence of a federal executive regime credibly committed to the case's outcome.

Author

• Jordan Carr Peterson, Jacksonville University