Sexual Orientation and the Law

This guide covers issues including marriage equality, employment and housing discrimination, child custody issues, and military policy.

Relationship Recognition

The Defense of Marriage Act was passed by Congress in 1996 and is codified at 1 U.S.C. § 7 and 28 U.S.C. § 1738c which reads:

"In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife." (1 U.S.C. § 7)

This law has two effects:

  • That no state is forced to recognize a same-sex marriage even if the marriage was recognized in another state.
  • The Federal Government may not recognize same-sex, or polygamous, marriages for any purpose, even if recognized by a state

Section 3 of DOMA, which defined marriage under federal law, was overturned by the U.S. Supreme Court in June of 2013.  The Court held that DOMA was unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.

Employment Non-Discrimination

There are currently no protections under federal law for employment non-discrimination against LBGTIQ people.  There is, however, pending legislation which attempts to address this.  The Employment Non-Discrimination Act (ENDA) would extend fair employment practices under federal law to the lesbian, gay, bisexual and transgender community. Based on the principle that all workers should be judged solely on their merits like other civil rights laws, ENDA's procedures and remedies are based on those of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. The bill does not apply to military employment, small employers, and does not require employers to provide domestic partner benefits.

For the latest news on this pending legislation check out the Human Rights Campaign at:

Important federal cases

Bowers v. Hardwick, 478 U.S. 186 (1986) (W|L) 
Practicing homosexual brought action challenging constitutionality of Georgia sodomy statute. The United States District Court for the Northern District of Georgia, Robert H. Hall, J., granted defendants' motion to dismiss for failure to state claim upon which relief could be granted, and plaintiff appealed. The Court of Appeals, 760 F.2d 1202, reversed and remanded. After rehearing was denied, 765 F.2d 1123, defendants petitioned for certiorari. The Supreme Court, Justice White, held that Georgia's sodomy statute did not violate the fundamental rights of homosexuals.

Lawrence v. Texas, 539 U.S. 558 (2003) (W|L)
Defendants were convicted in the County Criminal Court at Law No. 10, Harris County, Sherman A. Ross, J., of engaging in homosexual conduct. They appealed. On rehearing en banc, the Texas Court of Appeals, Hudson, J., 41 S.W.3d 349, affirmed. Certiorari was granted. The Supreme Court, Justice Kennedy, overruled its prior decision in Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), and held that Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct was unconstitutional, as applied to adult males who had engaged in consensual act of sodomy in privacy of home.

Romers v. Evans, 517 U.S. 620 (1996) (W|L)
Homosexual persons, municipalities, and others brought action against governor, state attorney general, and state, challenging validity of amendment to Colorado Constitution that prohibited all legislative, executive, or judicial action designed to protect homosexual persons from discrimination. The District Court, City and County of Denver, H. Jeffrey Bayless, J., 1993 WL 518586, entered permanent injunction enjoining enforcement of amendment, and defendants appealed. The Colorado Supreme Court affirmed, 882 P.2d 1335, and certiorari was granted. The Supreme Court, Justice Kennedy, held that amendment violated equal protection clause.

Gill v. Office of Personnel Management, 699 F.Supp.2d 374 (2010) (W|L)
Same-sex couples married in Massachusetts and three survivors of same-sex spouses, also married in Massachusetts, brought action alleging that, due to operation of Defense of Marriage Act (DOMA), they were denied certain federal marriage-based benefits that were available to similarly-situated heterosexual couples, in violation of equal protection principles embodied in Fifth Amendment's Due Process Clause. Federal officials moved to dismiss, and plaintiffs moved for summary judgment.

Massachusetts v. U.S. Dept. of Health and Human Services, 698 F.Supp.2d. 234 (2010) (W|L)
Commonwealth of Massachusetts brought action challenging constitutionality of federal Defense of Marriage Act (DOMA). United States moved to dismiss, and Commonwealth moved for summary judgment.  Court held that DOMA exceeded Congress's power under Spending Clause and violated the Tenth Amendment.

Golinski v. Office of Personnel Management, 824 F.Supp.2d 968 (2012) (W|L)
Federal employee, who was a lesbian married to someone of the same sex, brought action against the Office of Personnel Management (OPM), seeking a determination that Defense of Marriage Act (DOMA), as applied to her, violated the Constitution by refusing to recognize lawful marriages for the purposes of application of the laws governing benefits for federal employees. After the Bipartisan Legal Advisory Group's (BLAG) motion to intervene was granted, BLAG and OPM moved to dismiss, and employee moved for summary judgment.

United States v. Windsor (2013) (W|L)
Section 3 of Defense of Marriage Act—which defines “marriage” as only between “one man and one woman,” which defines “spouse” only as “person of the opposite sex who is a husband or a wife,” and which operates to deny marital exemption to federal estate tax and other benefits of federal law to same-sex married couples—violates basic due process and equal protection principles applicable to federal government, where, among other things, DOMA's avowed purpose and practical effect are to impose disadvantage, separate status, and stigma upon all who enter into same-sex marriages made lawful by unequestioned authority of the states.

Heafey Law Library Research Team