The LGBT Constitutional Rights Era

Supreme Court eras are often defined by a single issue. In the early 19th century, SCOTUS wrestled with the nature and balance of power of American government in cases like Marbury, McCulloch and Gibbons. In the 1850s, SCOTUS tried to resolve the issues of slavery and race in Dred Scott. In the 1930s, SCOTUS increased federal power to intervene in the economy (disrupting private contracts) during the Great Depression. In the 1950s and ’60s SCOTUS created a new American racial constitutional identity. And now, in the early 21st Century, SCOTUS is establishing an LGBT constitutional identity.

Here’s what I find fascinating about each of those examples: you could know nothing about SCOTUS, but by knowing a bit about American history, you probably could have guessed which issue the Court addressed at which time. Why? Because the SCOTUS has tended to interpret the Constitution consistently with public opinion. The justices don’t say this in their decisions, but it matters what Americans think. This is part of the reason why Lochner was overruled in the 1930s, when people were clamoring for New Deal programs to escape the Great Depression. It’s part of the reason why the decisions of the Court reflected and advanced the progress of the Civil Rights Movement during the 1950s and ’60s, but as that movement lost steam in the ’70s, the Court began backtracking on some of its earlier decisions.

SCOTUS eras correspond with national discussions about the predominant issues of those eras. And the lasting major SCOTUS decisions tend to mirror the consensuses reached by the public. We are in the era of LGBT rights. We have already seen three major SCOTUS decisions: Romer, Lawrence, and Windsor. We are in the midst of a national discussion about LGBT rights. And that discussion is not limited to a policy discussion about laws protecting LGBT rights. The discussion is also about the meaning of the Constitution. To what extent should the Constitution protect the rights of LGBT individuals? And, more broadly, should a majority of Americans be able to take a moral position and pass laws based on that moral position if the laws passed primarily affect the lives of people in a minority group?

As much as the early 21st century is the era of LGBT rights, the October 2014 SCOTUS term is likely to be the year of LGBT rights. As of this writing, there are seven pending petitions asking SCOTUS to finally determine whether the 14th Amendment contains a right to same-sex marriage. And EVERYONE is asking SCOTUS to decide the issue. There’s not really a circuit split right now, but that could change very soon when the 6th Circuit issues its decision. So, there is a good chance that SCOTUS will decide whether the 14th Amendment contains a right to same-sex marriage by June 2015.

In light of that likelihood and in the spirit of the era of LGBT rights, I’ll be writing a series of posts tackling the major constitutional arguments for and against the right to same-sex marriage over the course of this term.

So, sit back, relax and enjoy the era of LGBT constitutional rights.

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