Implementing Equality: State (Non)compliance With Judicial Revisions to Public Policy on Gay Rights

Abstract

Because the civil rights movement accomplished many successes via litigation, advocacy communities regard courts as bulwarks against the legal enshrinement of oppression targeting vulnerable minorities. Advocates of LGBTQ equality are no different, identifying the judiciary as critical to eradicating discrimination on the basis of sexual orientation. Standing alone, however, Supreme Court holdings revising the scope of civil rights for sexual minorities represent a change in policy formulation rather than implementation. Judicially directed reformulations of public policy require cooperation by officials responsible for implementation, and compliance rates with judicial directives vary. Here, I analyze state responses to two Supreme Court decisions involving sexual minorities: Lawrence v. Texas, decriminalizing sodomy, and Obergefell v. Hodges, invalidating state same-sex marriage bans. Although adherence to Obergefell was swift and nearly universal, compliance outcomes for Lawrence have been uneven, as some states continue to enforce statutes that are materially equivalent to the “homosexual conduct” law reviewed in Lawrence. I argue compliance with Lawrence has lagged compared to Obergefell for the following three reasons: (1) linguistic imprecision in Lawrence; (2) divergent views of the right(s) at issue in each case; and (3) the absence of a federal executive regime credibly committed to the case's outcome.