Guest Essayist: Daniel A. Cotter

Lawrence v. Texas (2003), United States v. Windsor (2013) and Obergefell v. Hodges (2015): The June 26th SCOTUS Trifecta by Justice Anthony Kennedy

On June 26, 2015, the Supreme Court of the United States held a special Friday session the week before end of term to announce its decision in Obergefell v. Hodges, in which the Court held that the “Fourteenth Amendment requires a State to license a marriage between two people of the same sex.”  The Obergefell opinion marks the third of three June 26th Supreme Court decisions since 2003 recognizing human rights and protections for gay people. All three were authored by Justice Anthony Kennedy, making him a hero in the LGBT community.

Lawrence v. Texas

In 1986, the Supreme Court held in Bowers v. Hardwick that sexual privacy was not constitutionally protected, upholding a Georgia anti-sodomy law.  In 2003, many states still had laws on the books classifying sodomy a crime.

In Lawrence, the defendants challenged a Texas anti-sodomy law that classified consensual, adult anal intercourse between two individuals of the same sex as illegal sodomy as violative of the equal protections guaranteed by the Fourteenth Amendment, given that the Texas law prohibited sodomy between individuals of the same sex but not individuals of the opposite sex.  The defendants had been convicted under the state statute and fined.

A three-judge Texas appellate panel overturned the lower court’s ruling, finding the law unconstitutional. The Texas appellate court decided to reconsider the decision en banc and, without oral argument, held 7-2 the law was constitutional, rejecting substantive due process and equal protection arguments. An appeal to the Texas Court of Criminal Appeals was denied.  The defendants filed a writ for certiorari with the Supreme Court, asking it to review the constitutionality of the Texas law.

The Supreme Court granted certiorari and, on June 26, 2003, held in a 6-3 decision authored by Justice Kennedy that the Texas statute was unconstitutional. Kennedy wrote:

The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime…. Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.

With the decision, sodomy laws in Texas and thirteen other states were invalidated.  Justice Antonin Scalia wrote a dissent, joined by Chief Justice William Rehnquist and Justice Clarence Thomas, objecting to the majority’s failure to apply stare decisis by overturning Bowers. Scalia also predicted in his dissent that this decision would lead to a future ruling by the Court that homosexual marriages are acceptable.  Thomas also penned a dissent, calling the Texas law “uncommonly silly” but finding no general right of privacy in the Constitution.  He also noted that if he were a member of the Texas legislature, he would vote to overturn the “silly” law.

Professor Laurence Tribe, a well-known Constitutional scholar, noted the significance of this decision. He commented that Lawrence “may well be remembered as the Brown v. Board of Education of gay and lesbian America.”  His comments would be proved correct.

United States v. Windsor

In 1996, the United States Congress passed the Defense of Marriage Act (“DOMA”) which provided in its Section 3 that a federally-defined marriage was between one man and one woman. Edith Windsor and Thea Spyer were a same-sex couple living in New York who lawfully married in Canada in 2007 and were recognized in New York as legally wed after a court decision. When Spyer died, Windsor attempted to claim the federal estate tax exemption for surviving spouses, but was barred from doing so under Section 3 of DOMA.

Windsor filed a lawsuit against the federal government seeking a refund of the estate tax she had paid, alleging differential treatment in violation of the Fifth Amendment’s Equal Protection Clause. Then-United States Attorney General Eric Holder announced that the Department of Justice would not defend the constitutionality of Section 3 of DOMA. A group known as the Bipartisan Legal Advisory Group stepped in to defend the suit.  The District Court for the Southern District of New York found Section 3 unconstitutional because it violated the equal protection guarantees of the Fifth Amendment. The United States Court of Appeals for the Second Circuit affirmed in a 2-1 decision.  The United States Supreme Court granted certiorari and, on June 26, 2013, in a 5-4 decision authored by Justice Kennedy found Section 3 of DOMA unconstitutional, “as a deprivation of the liberty of the person protected by the Fifth Amendment.”  Kennedy wrote that the differentiating between same sex marriages and heterosexual marriages “demean the couple, whose moral and sexual choices the Constitution protects.”

Scalia again dissented, arguing that the Court had no power to decide the case, because Windsor had no injury once she received a judgment in her favor.  He also noted that this decision would lead to recognition of same sex marriages, writing:

As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.

By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.

The decision immediately led to the federal government extending the same rights and benefits accorded to married heterosexual couples to married same-sex couples, resulting in changes to Medicaid, tax status, and employee benefits.

Obergefell v. Hodges

Following the decision in Windsor, James Obergefell and John Arthur decided to get married in Maryland on July 11, 2013.  Their state of residence, Ohio, did not recognize their marriage, and the couple filed suit in federal court in the Southern District of Ohio, alleging discrimination against same-sex couples who married in another state.  As Arthur was terminally ill, the couple sought a temporary restraining order requiring that Arthur’s death certificate list Obergefell as Arthur’s surviving spouse.  The District Court granted the couple’s TRO motion with respect to the death certificate and then issued a further ruling holding that Ohio’s law barring recognition of same-sex marriages originating in other states was unconstitutional.    A number of other lawsuits were filed in Ohio challenging the state’s refusal to recognize same-sex marriages performed legally in other states.

The Sixth Circuit reversed the District Court in a 2-1 decision, finding that Ohio’s ban on same-sex marriage did not violate the U.S. Constitution.  The same-sex couples filed a petition for a writ of certiorari with the United States Supreme Court, which was granted along with similar writs regarding three other same-sex marriage cases challenging state laws that prohibited same-sex marriage.

The Supreme Court heard oral arguments on April 28, 2015. Much speculation on the decision started to percolate, with some Supreme Court observers asking if the decision would be published on June 26, 2015.  In recent years, no Friday decision announcements had been made preceding the final week of the Supreme Court term.  When the Supreme Court announced that it would have a special rulings date on June 26, many predicted that the decision would ban the prohibition of same-sex marriages or, at the very least, require states to recognize same-sex marriages performed in another state.

The speculation was confirmed on June 26, 2015, when the Supreme Court announced its 5-4 decision authored by Justice Kennedy, who wrote:

The Constitution promises liberty to all within its reach, a liberty that includes specific rights that allow persons, within a lawful realm, to define and express their identity.

They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Scalia dissented, asserting that the Court’s decision effectively robs the people of the liberty to govern themselves.  He noted that same-sex bans would not have been unconstitutional at the time of the Fourteenth Amendment, and so would not be unconstitutional today.


Over a twelve year period, on June 26 each time and with Justice Kennedy writing each majority opinion, the Supreme Court, recognized that same-sex couples enjoyed constitutional rights, including the right to marry. The trifecta, beginning with Lawrence, overruled the Bowers decision and changed the landscape for same-sex couples in the United States.  The date of the final ruling in the trifecta likely is no coincidence, given Kennedy’s sense of history.  These three cases are landmark decisions because they establish constitutionally protected rights for same-sex couples.  Supreme Court Justice Neil Gorsuch in his confirmation hearings stated that the Obergefell decision is settled law on the issue, and time will tell if future challenges are brought that the Supreme Court will hear.

Bowers v. Hardwick (1986) Supreme Court decision: 5-4 (

Lawrence v. Texas (2003) Supreme Court decision: 6-3 (

United States v. Windsor (2013) Supreme Court decision: 5-4 (

Obergefell v. Hodges (2015) Supreme Court decision: 5-4 (

Dan Cotter is a partner at Butler Rubin Saltarelli & Boyd LLP and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

1 reply
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    Thank you for the essay.

    Using the equal protection clauses and the twisted 14th amendment due process clause other shoes will follow. Polygamy other currently unspeakable sexual activities, private drug use, and any other activity that is considered a person’s private life, liberty, property.

    What two people do in their bedroom is none of my business. But pass a Constitutional amendment make it and other activities private.

    Regardless of what is deemed legal or acceptable, or whether it is public or private; “Do not be deceived: GOD is not mocked. Whatever one sows, that they will reap. If he sows to please his own wrong desires, he will be planting seeds of evil and he will surely reap a harvest of spiritual decay and death; but if he plants the good things of the Spirit, he will reap the everlasting life that the Holy Spirit gives him.”



Join the discussion! Post your comments below.

Your feedback and insights are welcome.
Feel free to contribute!

Leave a Reply

Your email address will not be published. Required fields are marked *