Gay Rights during the Bush Presidency

President Bush was “elected” under much controversy in 2000.  After a December 12, 2000  7-2 United States Supreme Court decision stating that the Florida Supreme Court's plan for recounting ballots was unconstitutional, as well as a 5-4 decision that ended the Florida recounts and allowed Florida to certify its vote.  Bush claimed he was reaching across party lines to bridge a divided America, saying, "the President of the United States is the President of every single American, of every race, and every background.”

The year 2000 gave us our second setback to the gay movement.  On May 20, 1996, the Supreme Court of the United States ruled in Romer v. Evans against an amendment to the Colorado state constitution that would have prevented any city, town or county in the state from taking any legislative, executive, or judicial action to protect homosexual citizens from discrimination on the basis of their sexual orientation. Then on June 28, 2000, the Supreme Court of the United States ruled that the Boy Scouts of America had a First Amendment right to exclude people from its organization on the basis of sexual orientation, irrespective of any applicable civil rights laws.

After these setbacks, organizations like Lambda Legal continued our fight and in 2003, the United States Supreme Court ruled in Lawrence v. Texas that laws against sodomy or anal sex cannot be directed at homosexuals alone, and furthermore, that intimate consensual sexual conduct is part of the liberty protected by substantive due process under the Fourteenth Amendment. The majority opinion, written by Justice Anthony Kennedy, explicitly reverses Bowers v. Hardwick. (On June 30, 1986, the Supreme Court of the United States ruled in Bowers v. Hardwick, that homosexual citizens had no constitutional right to privacy.)  What was significant about this decision was that under the common law, the existence of rights of sexual partners were recognized through the marriage contract. That is, in common law there was no stand-alone right to engage in sexual activity, be they male or female, adult or minor. But, it is a basic legal principle under the common and statutory laws that everything that is not forbidden by the common and statutory law is allowed. As sexual acts usually take place in private, few cases involving engagement in sodomy and fornication came before the courts, and no precedent was established under the common law forbidding fornication; with sodomy, the common law was mixed.  This was most notable in Judge Scalia dissension:  with this decision, Scalia concluded, the Court "has largely signed on to the so-called homosexual agenda." While Scalia said that he has "nothing against homosexuals, or any other group, promoting their agenda through normal democratic means," Scalia argued that the Court has an obligation to decide cases neutrally. In Goodridge v. Department of Public Health, a later case decided by the Massachusetts Supreme Judicial Court, held that the Massachusetts Constitution requires that marriage be available to homosexual as well as heterosexual couples.

Immediate comparisons were made to the 1967 Supreme court decision on interracial marriages.  Opponents of same-sex marriage argue that men and women are fundamentally different from one another, whereas interracial couples still fit within the "one man and one woman" definition of marriage. Louisiana State University law professor Katherine Spaht holds that there is an inherent difference between interracial marriage and same-sex marriage because same-sex couples cannot procreate; Prof. Spaht characterizes the debate as follows: “The fundamental understanding of marriage has always been, by definition, a man and a woman. Never did Webster’s Dictionary define the term marriage in terms of the races." Proponents of same-sex marriage make a comparison between racial segregation and segregation of homosexual and heterosexual marriage classifications in civil law. They argue that dividing the concept of same-sex marriage and different-sex marriage is tantamount to "separate but equal" policies (like that overturned in the U.S. Supreme Court case Brown v. Board of Education), or anti-miscegenation laws that were also overturned by the Supreme Court in 1967 in Loving v. Virginia.