Dissenting Opinions Pointing the Way

Fair Courts Project

"History has shown that in cases of magnitude, the opinions of the dissenting justices later become the law of the land."
– Jenny Pizer, Senior Counsel at Lambda Legal,
referencing the strong dissent in favor of marriage
equality in the Washington State case, Andersen v. King County

Injustice Overruled:

For many years the battle for equal rights for the lesbian, gay, bisexual and transgender communities has been fought in the courtroom. While the victories won are invaluable, we must remember that the opinions delivered in defeat can be just as important to the progression of civil rights. How can this be true? A quick look at Brown v. Board of Education and Lambda Legal’s groundbreaking case Lawrence v. Texas demonstrates just how the same decisions that once limited the rights of U.S. citizens can be used to form new opinions that create a more equal society.

In civil rights cases, the dissenting opinions delivered in unfavorable decisions sometimes serve to forecast how and why those decisions will eventually be overturned. The cases below, Brown v. Board of Education and Lawrence v. Texas, illustrate just how this happens.

  • Brown v. Board of Education: In 1954, the U.S. Supreme Court overturned the 1896 case of Plessy v. Ferguson. The majority in Plessy created the separate but equal doctrine, allowing businesses and public accommodations to separate people based on race. In a lengthy dissent, Justice Harlan noted that the concept of separating citizens based on race was, “wholly inconsistent with the civil freedom and equality before the law established by the constitution.” Justice Harlan went as far as to predict that the doctrine would ultimately be overturned. Nearly 60 years later, Harlan’s prediction became reality as the court in Brown eliminated the separate but equal doctrine — finding that “separate but equal” had no place under the equal protection of the laws guaranteed by the Constitution.
  • Lawrence v. Texas: Lambda Legal’s groundbreaking 2003 U.S. Supreme Court case overturned Bowers v. Hardwick, a 1986 decision where the majority ruled in favor of criminalizing homosexual sodomy. The Bowers dissent, delivered by Justice Stevens, argued that the law was unconstitutional because it violated the right to privacy. In addition it urged the court to consider whether such a law would violate the Equal Protection Clause of the Fourteenth Amendment. Seventeen years later, Lawrence v. Texas explicitly addressed whether a similar law and the ruling from Bowers were unconstitutional. In overturning Bowers, the court not only used some of the rationale from Justice Stevens’ dissent but also stated, “Justice Stevens’ analysis, in our view, should have been controlling in Bowers and should control here.” The court struck down all sodomy laws across the country, reasoning that laws criminalizing same-sex consensual adult sex denied residents their constitutional right to liberty.

Implications:

As more and more courts hear cases pertaining to LGBT rights, Brown and Lawrence serve as reminders that even unfavorable decisions can serve to foster social progress. Win or lose, it is most important that the case for LGBT equality is heard, and history suggests that fair-minded arguments supporting constitutional rights will ultimately prevail.

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