The American Psychological Association Is Incorrect to Claim Credit for the Supreme Court’s Homosexuality Decisions

Gay rights protestors outside of the Supreme Court.
JACQUELYN MARTIN / AP

The U.S. Supreme Court’s landmark 2003 and 2015 decisions legalizing same-sex intimacy and marriage, respectively, reflected a fundamental rethinking of freedom and liberty that in many ways mirrored the American Psychological Association’s (APA) fundamental rethinking of pathology several decades prior (Obergefell v. Hodges 7; Lawrence v. Texas 1; Wilson). In 2019, the American Psychological Association cited their modifications to the Diagnostic and Statistical Manual to depathologize homosexuality as having a “particularly strong impact” on the Supreme Court’s decisions (DeAngelis). Insofar as APA representatives contributed as amici curiae in both landmark cases and insofar as the APA’s evolved understanding of homosexuality as normative and immutable was cited in the majority opinion for Obergefell v. Hodges, the depathologization of homosexuals directly contributed to the decriminalization of same-sex intercourse and marriage. Yet the majority opinions of both Obergefell v. Hodges and Lawrence v. Texas make it clear that mounting legal arguments, not long-retreated psychopathological orthodoxies, contributed in larger part to the legalization of same-sex relations and same-sex marriage. Moreover, the notion that acceptance of homosexuality among psychiatrists formed the basis of their public and legal acceptance is further undermined by the disparate chronologies of these developments.

In 1973, the APA’s Committee on Nomenclature removed “homosexuality” from the Diagnostic and Statistical Manual of Mental Disorders. The removal represented a shift in understanding within the APA but apparently did little to shift judicial opinion in the coming decades. Specifically, in 1986, the Supreme Court affirmed the constitutionality of anti-sodomy legislation in Bowers v. Hardwick. Justice Byron White, writing for the majority, concluded that the right to engage in sodomy was neither “implicit in the concept of ordered liberty” nor “rooted in the Nation’s history” and was therefore not implicitly guaranteed by the Constitution. This decision would not be overturned until the landmark 2003 case Lawrence v. Texas, which established that the right of same-sex couples to engage in sexual relations was protected under the Due Process Clause of the Fourteenth Amendment. In 2015, the Supreme Court struck down prohibitions of same-sex marriage nationwide in Obergefell v Hodges. Those arguing that changes in the psychiatric or psychological understanding of homosexuality profoundly changed the legal calculus must explain why the courts took three decades to recognize it.

Still, one could be taken by a reading of this history that places much greater significance on the psychiatric establishment’s indirect influence on the courts by shaping public perceptions. Gay psychiatrist Dr. Jack Dresher in “Psychiatric Diagnoses Can Change History” argues that decertification of ‘homosexuality’ as a mental disorder “paved the way for social debate surrounding” gay marriage, enabling the Supreme Court to cite the public’s “new insights” and “changed understandings of marriage” as evidence that “new dimensions of freedom” were becoming apparent to the Nation (Obergefell v Hodges 7).

Though it’s undeniable that the public’s increasing support for marriage equality underpinned important aspects of the Obergefell decision, this reading may overstate the relevance of the psychiatric establishment and the DSM in the public consciousness. For one, the growth in public support for gay-marriage did not coincide with the 1973 determination that homosexuality was not pathological. To the contrary, public support for gay marriage began to increase by around one-percent annually between 1988 and 2009, at which point support surged markedly (Pew Rearch Center).

Whereas the majority in Obergefell v. Hodges mentions the psychological establishment and the DSM only once (in a historical description), it enumerates four principles and traditions rooted in the “Court’s relevant precedents” that imply a right of individuals to marry regardless of gender (Obergefell v. Hodges 7, 12). For example, the majority cites Loving v. Virginia, which invalidated bans on interracial marriage, to buttress the principle that an individual’s right to marry is fundamental to the conceptions of individual autonomy and liberty. Each of the remaining three principles are rooted in the Nation’s history and Court’s precedents.

Assuaging concerns that the Court was overstepping its bounds, the majority (quite instructively) enumerates the types of public and academic deliberations which inform its decisions. The majority notes that “extensive litigation in state and federal courts” has taken place, producing “many thoughtful District Court decisions… which reflect the more general societal discussion” surrounding the definition of marriage (Obergefell v. Hodges 23). To be sure, the majority mentions “studies” and “more than 100 amici,” which psychologists no doubt contributed to. However, not one psychological study was referenced, whereas twelve pieces of legislation upholding same-sex marriage, thirteen Courts of Appeals decisions, sixty District Court decisions, and twenty-one state highest court decisions were referenced.

On June 26, 2015, it was determined that homosexual couples may exercise a constitutional right to marry nationwide. The decision came on the heels of the 2003 affirmation of the right to engage in sodomy without fear of prosecution. Based on the majority’s stated opinion in both cases, burgeoning legal arguments (rooted in precedent and legal arguments surrounding the evolving definitions of marriage) enabled the change to a greater extent than the medical establishment’s acceptance of homosexuality. The depathologization of homosexuality by the psychiatric establishment did not coincide with either shifts in public or judicial opinion. Moreover, mention of the psychiatric findings is scarce in either majority opinion, whereas reference to newly-adopted legal statutes and prior decisions constitutes the bulk of the majority opinion.

Works Cited

Bowers v. Hardwick, 478 U. S. 186. Supreme Court of the United States. 1986.

DeAngelis, Tori. 10 Ways Psychology Changed American Law. 1 Dec. 2019, www.apa.org/monitor/2019/12/cover-courts.

Drescher, Jack. “Psychiatric Diagnoses Can Change History.” Psychology Today, Sussex Publishers, 27 Feb. 2011, www.psychologytoday.com/us/blog/psychoanalysis-30/201102/psychiatric-diagnoses-can-change-history.

Lawrence v. Texas, 539 U. S. 558. Supreme Court of the United States. 2003.

Obergefell v. Hodges, 576 U. S. ___. Supreme Court of the United States. 2015.

Pew Research Center. Growing Public Support for Same-Sex Marriage. 30 May 2020, www.pewresearch.org/politics/2012/02/07/growing-public-support-for-same-sex-marriage/.

Wilson, Mitchell. “DSM-III and the Transformation of American Psychiatry: A History,” The American Journal of Psychiatry 150 (1993): 403–404.

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