William_T._Bianco,_David_T._Canon]_American_Polit

182182 Chapter 5 | Civil Rights

Lawrence’s apartment. The Supreme Court ruled in a historic 6–3 decision that the due

process clause of the Fourteenth Amendment guarantees freedom of not only thought,

belief, and expression but also certain intimate conduct (including homosexual

relations). This reasoning is rooted in the substantive due process doctrine that

underlies constitutional protections for birth control, abortion, and decisions about

how to raise one’s children.

The decision overturned Bowers v. Hardwick, and the majority opinion had harsh

words for that decision, saying it “was not correct when it was decided, and it is not

correct today.” Five members of the majority signed on to the broad “due process”

reasoning of the decision, rather than the narrower reasoning in Justice O’Connor’s

concurring opinion, in which she said that the decision should apply only to the

four states that treated gays differently (that is, banning sodomy for homosexuals

but not for heterosexuals). With the broader due process logic, a total of 13 state

laws that banned sodomy were struck down. Justice Scalia wrote a strong dissent,

saying that the decision was “the product of a court that has largely signed on to the

so-called homosexual agenda” and warned that the ruling “will have far-reaching

implications beyond this case.” He predicted that the ruling would serve as the basis for

constitutional protections for same-sex marriage.^88

The Supreme Court issued two important rulings on same-sex marriage in 2013.

The first case was a narrow ruling that reinstated same-sex marriage in California

but did not affect any other state. The second case was a more far-reaching decision

that struck down part of the Defense of Marriage Act (DOMA) as a violation of the

Fifth Amendment’s due process clause. The majority opinion said that the federal

government cannot deny benefits to same-sex couples who are legally married under

state law. The gradual movement toward endorsing same-sex marriage culminated in

2015 in the landmark ruling Obergefell v. Hodges, which legalized same-sex marriage in

all 50 states.^89 (For more on the Supreme Court’s ruling in this case, see How It Works:

The Court System in Chapter 14.) The 5–4 ruling said that the fundamental right to

marry is guaranteed by both the due process clause and the equal protection clause of

the Fourteenth Amendment.

This section demonstrates that the courts can be both a strong advocate of and an

impediment to civil rights. In general, however, the courts have a limited independent

impact on policy. That is, as the school desegregation cases clearly demonstrate, the

courts must rely on the other branches of government to carry out their decisions.

Congress

Congress has provided the basis for today’s protection of civil rights through a series of

laws that were enacted starting in the 1960s. Applying to racial and ethnic minorities

and to women, these laws attempted to ensure that there is a “level playing field” of

equal opportunity.

Key Early Legislation The bedrock of equal protection that exists today stems

from landmark legislation passed by Congress in the 1960s—the 1964 Civil Rights

Act, the 1965 VR A, and the 1968 Fair Housing Act. President Kennedy was slow to

seek civil rights legislation for fear of alienating southern Democrats. The events in

Birmingham prompted him to act, but he was assassinated before the legislation was

passed. President Lyndon Johnson, a former segregationist, helped push through

the Civil Rights Act when he became president. The act barred discrimination in

employment based on race, sex, religion, or national origin; banned segregation in

public places; and established the EEOC as the enforcement agency for the legislation.

substantive due process

doctrine

One interpretation of the due process

clause of the Fourteenth Amendment;

in this view the Supreme Court has

the power to overturn laws that

infringe on individual liberties.

The Constitution promises

liberty to all within its

reach... [and] extend[s] to

certain personal choices central

to individual dignity and

autonomy, including intimate

choices that define personal

identity and beliefs.

—Supreme Court’s majority

opinion in Obergefell v. Hodges

DID YOU KNOW?

66.2%

of African Americans voted in 2012

compared with 64.1 percent of whites

(but African-American turnout was

slightly lower than whites’ turnout

in 2016).

Source: Pew Research Center

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