You are on page 1of 10


Equal Employment Opportunity Commission v. Abercrombie & Fitch

Stores, 575 U.S. ___ (2015), was a United States Supreme Court case
regarding a Muslim-American woman, Samantha Elauf, who was refused a
job at Abercrombie & Fitch in 2008 because she wore a head scarf, which
conflicted with the company's dress code.[1] The Supreme Court of the United
States ruled 8-1 in Elauf's favor on June 1, 2015.[2]
In 2008, Elauf, then 17 years old, applied for a job at an Abercrombie & Fitch
store in Tulsa, Oklahoma. During her interview with the company, she was
wearing a head scarf, but did not say why.[1] The woman interviewing her,
Heather Cooke, was initially impressed with Elauf, but also concerned about
her head scarf.[3] Cooke had told the manager of the store that she thought
Elauf was wearing the scarf for religious reasons, but the manager responded
that employees were not allowed to wear hats at work, and so declined to hire
In 2009, the Equal Employment Opportunity Commission sued Abercrombie
& Fitch on Elauf's behalf.[5] This led to a lawsuit in a federal district court that
resulted in Elauf receiving $20,000 in damages.[6][7] However, this decision
was later reversed by the 10th U.S. Circuit Court of Appeals, which ruled in
favor of Abercrombie & Fitch on the basis that Elauf did not provide the
company with information about her need for an accommodation.[7]
Opinion of the Court[edit]
On June 1, 2015, the Supreme Court ruled 8–1 in favor of Elauf. In an opinion
by Associate Justice Antonin Scalia, the Court held that Elauf did not have to
explicitly request an accommodation to obtain protection from Title VII, which
prohibits religious discrimination in hiring.[1]
Justice Samuel Alito wrote an opinion concurring in the judgment, stating that
evidence of Abercrombie's knowledge of Elauf's religious practice was
sufficient grounds to rule against Abercrombie.[8] Justice Clarence Thomas
concurred in part and dissented in part.[1] Thomas agreed with the majority's
interpretation that Title VII protects against "intentional discrimination" against
a particular religious group, but felt that Abercrombie did not really engage in
that here because their dress code was a religion-neutral policy that affected
all potential applicants.[9] This ruling revived the lawsuit Elauf had filed against
the company.[2]

Bowers v. Hardwick, 478 U.S. 186 (1986), is a United States Supreme Court
decision that upheld, in a 5–4 ruling, the constitutionality of a Georgia sodomy
law criminalizing oral and anal sex in private between consenting adults, in
this case with respect to homosexual sodomy, though the law did not
differentiate between homosexual sodomy and heterosexual sodomy.[1] This
case was overturned in 2003 in Lawrence v. Texas.
The majority opinion, by Justice Byron White, reasoned that the Constitution
did not confer “a fundamental right to engage in homosexual sodomy”.[1] A
concurring opinion by Chief Justice Warren E. Burger cited the “ancient roots”
of prohibitions against homosexual sex, quoting William Blackstone’s
description of homosexual sex as an “infamous crime against nature”, worse
than rape, and “a crime not fit to be named”. Burger concluded: “To hold that
the act of homosexual sodomy is somehow protected as a fundamental right
would be to cast aside millennia of moral teaching.”[2] Justice Lewis F. Powell
later said he regretted joining the majority, but thought the case of little
importance at the time.
The senior dissent, by Justice Harry Blackmun, framed the issue as revolving
around the right to privacy. Blackmun’s dissent accused the Court of an
“almost obsessive focus on homosexual activity" and an “overall refusal to
consider the broad principles that have informed our treatment of privacy in
specific cases”. In response to invocations of religious taboos against
homosexuality, Blackmun wrote: “That certain, but by no means all, religious
groups condemn the behavior at issue gives the State no license to impose
their judgments on the entire citizenry. The legitimacy of secular legislation
depends, instead, on whether the State can advance some justification for its
law beyond its conformity to religious doctrine.”[3]
Seventeen years after Bowers v. Hardwick, the Supreme Court directly
overruled its decision in Lawrence v. Texas,[4] and held that anti-sodomy laws
are unconstitutional.
In August 1982, Atlanta police officer Keith Torick issued Michael Hardwick a
citation for public drinking after witnessing Hardwick throw a beer bottle into
the brush along Monroe Ave, thereby observing him violating the city’s
ordinance that prohibits drinking in public. Due to a clerical error, Hardwick
missed his court date and Torick obtained a warrant for Hardwick's arrest.
Hardwick then settled the matter by paying the $50 fine, but Torick showed up
at Hardwick's apartment three weeks later to serve the now-invalid warrant.[5]:
232–233[6] Hardwick’s roommate was sleeping on the couch in the living room.

The roommate invited officers in and directed them down the hall to
Hardwick’s room. The door was open and the officers observed Hardwick and
a companion engaged in mutual, consensual oral sex.[6]
Hardwick was angry at the intrusion and threatened to have Torick fired for
entering his home. Torick later stated that he "would never have made the
case if [Hardwick] hadn't had an attitude problem."[5]:233 Torick then arrested
both men for sodomy, a felony under Georgia law that carried a sentence of
one to twenty years' imprisonment.[7] District Attorney Lewis Slaton chose not
to prosecute the sodomy charge, considering that the warrant had expired,
and his own belief that the sodomy law should not be used to prosecute
consensual sexual activity.[5]:234
Hardwick then sued Michael Bowers, the attorney general of Georgia, in
federal court for a declaratory judgment that the state’s sodomy law was
invalid. He charged that as an active homosexual, he was liable to eventually
be prosecuted for his activities. The American Civil Liberties Union (ACLU)
had been searching for a “perfect test case” to challenge anti-sodomy laws,
and Hardwick’s cause presented the one they were looking for.[8] They
approached Hardwick, who agreed to be represented by ACLU attorneys.
In the lower federal courts, Hardwick was represented by attorney Kathleen
Wilde. The case was filed in the United States District Court for the Northern
District of Georgia, where it was dismissed, with the Court ruling in favor of
Attorney-General Bowers. Hardwick appealed, and the United States Court of
Appeals for the Eleventh Circuit reversed the lower court, finding that the
Georgia sodomy statute was indeed an infringement upon Hardwick’s
Constitutional rights.[9] The State of Georgia then appealed, and the Supreme
Court of the United States granted certiorari on November 4, 1985, to review
the case.
Hardwick was represented before the Supreme Court by Harvard Law School
Professor Laurence Tribe. Michael Hobbs, assistant attorney general, argued
the case for the State. The legality of the officer’s entry into Hardwick’s home
was not contested; only the constitutionality of the sodomy statute was
A heterosexual married couple was initially named in the suit as plaintiffs
John and Mary Doe, alleging that they wished to engage in sodomy but were
prevented from doing so by the Georgia anti-sodomy law.[1] However, they
failed to obtain standing and were dropped from the suit.[1]
Opinion of the Court[edit]
The Court issued a 5-4 ruling upholding the sodomy laws. Justice Byron
White wrote the majority opinion and was joined by Justices William
Rehnquist, Sandra Day O'Connor, Warren E. Burger, and Lewis F. Powell.
Justice Harry Blackmun wrote a dissent joined by William J. Brennan, Jr.,
Thurgood Marshall, and John Paul Stevens. Justice Stevens also wrote a
dissent joined by Justices Brennan and Marshall.
Majority opinion[edit]
The issue in Bowers involved the right of privacy. Since 1965’s Griswold v.
Connecticut,[10] the Court had held that a right to privacy was implicit in the
Due Process Clause of the Fourteenth Amendment to the United States
Constitution. In Bowers, the Court held that this right did not extend to private,
consensual sexual conduct, at least insofar as it involved homosexual sex.
The majority opinion in Bowers, written by Justice Byron White, framed the
legal question as whether the constitution confers “a fundamental right upon
homosexuals to engage in sodomy.” The opinion answered this question in
the negative, stating that “to claim that a right to engage in such conduct is
‘deeply rooted in this Nation’s history and tradition’ or ‘implicit in the concept
of ordered liberty’ is, at best, facetious.”
Justice White added a slippery slope warning about undesirable potential
implications for other sex laws:
And if respondent's submission is limited to the voluntary sexual conduct
between consenting adults, it would be difficult, except by fiat, to limit the
claimed right to homosexual conduct [p196] while leaving exposed to
prosecution adultery, incest, and other sexual crimes even though they are
committed in the home. We are unwilling to start down that road.
Chief Justice Burger's concurrence[edit]
The short concurring opinion by Chief Justice Warren E. Burger emphasized
historical negative attitudes toward homosexual sex, quoting Sir William
Blackstone’s characterization of sodomy as “a crime not fit to be named”.[2]
Burger concluded, “To hold that the act of homosexual sodomy is somehow
protected as a fundamental right would be to cast aside millennia of moral


Lawrence v. Texas, 539 U.S. 558 (2003),[1] is a landmark decision by the

United States Supreme Court. The Court struck down the sodomy law in
Texas in a 6–3 decision and, by extension, invalidated sodomy laws in 13
other states, making same-sex sexual activity legal in every U.S. state and
territory. The Court, with a five-justice majority, overturned its previous ruling
on the same issue in the 1986 case Bowers v. Hardwick, where it upheld a
challenged Georgia statute and did not find a constitutional protection of
sexual privacy.
Lawrence explicitly overruled Bowers, holding that it had viewed the liberty
interest too narrowly. The Court held that intimate consensual sexual conduct
was part of the liberty protected by substantive due process under the 14th
Amendment. Lawrence invalidated similar laws throughout the United States
that criminalized sodomy between consenting adults acting in private,
whatever the sex of the participants.[2]
The case attracted much public attention, and a large number of amici curiae
("friends of the court") briefs were filed. Its outcome was celebrated by gay
rights advocates, and set the stage for further reconsiderations of standing
law, including the landmark case of Obergefell v. Hodges which recognized
same-sex marriage as a fundamental right under the United States
Legal punishments for sodomy often included heavy fines, life prison
sentences, or both, with some states, beginning with Illinois in 1827, denying
other rights, such as suffrage, to anyone convicted of the crime of sodomy.[3]
In the late 19th and early 20th centuries, several states imposed various
eugenics laws against anyone deemed to be a "sexual pervert". As late as
1970, Connecticut denied a driver's license to a man for being an "admitted
As of 1960, every state had an anti-sodomy law.[5] In 1961, the American Law
Institute's Model Penal Code advocated the repeal of sodomy laws as they
applied to private, adult, consensual behavior.[6] Two years later the American
Civil Liberties Union (ACLU) took its first major case in opposition to these
laws.[7] Most judges were largely unsympathetic to the substantive due
process claims raised.
In Griswold v. Connecticut (1965), the Supreme Court struck down a law
barring the use of contraceptives by married couples. In Griswold, the
Supreme Court recognized for the first time that couples, at least married
couples, had a right to privacy,[8] drawing on the Fourth Amendment's
protection of private homes from searches and seizures without a warrant
based on probable cause, the Fourteenth Amendment's guarantee of due
process of law in the states, and the Ninth Amendment's assurance that
rights not specified in the Constitution are "retained by the people".
Eisenstadt v. Baird (1972) expanded the scope of sexual privacy rights to
unmarried persons.[9] In 1973, the choice whether to have an abortion was
found to be protected by the Constitution in Roe v. Wade.
In Bowers v. Hardwick (1986), the Supreme Court heard a constitutional
challenge to sodomy laws brought by a man who had been arrested, but was
not prosecuted, for engaging in oral sex with another man in his home.[10] The
Court rejected this challenge in a 5 to 4 decision. Justice Byron White's
majority opinion emphasized that Eisenstadt and Roe had only recognized a
right to engage in procreative sexual activity, and that long-standing moral
antipathy toward homosexual sodomy was enough to argue against the
notion of a right to sodomy. Justice Blackmun, writing in dissent, argued that
Eisenstadt held that the Constitution protects people as individuals, not as
family units.[11] He then reasoned that because state intrusions are equally
burdensome on an individual's personal life regardless of his marital status or
sexual orientation, there is no reason to treat the rights of citizens in same-
sex couples any differently.[12]
By the time of the Lawrence decision, ten states—Alabama, Florida, Idaho,
Louisiana, Mississippi, North Carolina, South Carolina, Michigan, Utah and
Virginia—still banned consensual sodomy without respect to the sex of those
involved, and four—Texas, Kansas, Oklahoma and Missouri—prohibited
same-sex couples from engaging in anal and oral sex.[5]
Arrest of Lawrence and Garner[edit]
On September 17, 1998, John Geddes Lawrence Jr.,[13][14] a gay 55-year-old
medical technologist, was hosting two gay acquaintances, Tyron Garner,[15]
age 31, and Robert Eubanks,[16] 40, at his apartment in northeast Harris
County, Texas,[17] east of the Houston city limits.[18] Lawrence and Eubanks
had been friends for more than 20 years. Garner and Eubanks had a
tempestuous on-again off-again romantic relationship since 1990. Lacking
transportation home, the couple were preparing to spend the night. Eubanks,
who had been drinking heavily, left to purchase a soda from a nearby vending
machine. Apparently outraged that Lawrence had been flirting with Garner, he
called police and reported "a black male going crazy with a gun" at
Lawrence's apartment.[19]
Four Harris County sheriff's deputies responded within minutes and Eubanks
pointed them to the apartment. They entered the unlocked apartment toward
11 p.m. with their weapons drawn. In accordance with police procedures, the
first to arrive, Joseph Quinn, took the lead both in approaching the scene and
later in determining what charges to bring. He later reported seeing Lawrence
and Garner having anal sex in the bedroom. A second officer reported seeing
them engaged in oral sex, and two others did not report seeing the pair
having sex. Lawrence repeatedly challenged the police for entering his home.
Quinn had discretionary authority to charge them for a variety of offenses and
to determine whether to arrest them. When Quinn considered charging them
with having sex in violation of state law, he had to get an Assistant District
Attorney to check the statutes to be certain they covered sexual activity inside
a residence. He was told that Texas' anti-sodomy statute, the "Homosexual
Conduct" law, made it a Class C misdemeanor if someone "engages in
deviate sexual intercourse with another individual of the same sex".[20] The
statute, Chapter 21, Sec. 21.06 of the Texas Penal Code, had been adopted
in 1973 when the state revised its criminal code to end its proscription on
heterosexual anal and oral intercourse.[21]
Quinn decided to arrest Lawrence and Garner and charge them with having
"deviate sex". In the separate arrest reports he filed for each, he wrote that he
had seen the arrestee "engaged in deviate sexual conduct namely, anal sex,
with another man".[22] Lawrence and Garner were held in jail overnight. At a
hearing the next day, they pleaded not guilty to a charge of "homosexual
conduct". They were released toward midnight.[23] Eubanks pleaded no
contest to charges of filing a false police report. He was sentenced to 30 days
in jail but released early.[24]
Prosecution and appeals[edit]
The gay rights advocates from Lambda Legal litigating the case convinced
Lawrence and Garner not to contest the charges and to plead no contest
instead.[25] On November 20, Lawrence and Garner pleaded no contest to the
charges and waived their right to a trial. Justice of the Peace Mike Parrott
found them guilty and imposed a $100 fine and court costs of $41.25 on each
defendant. When the defense attorneys realized that the fine was below the
minimum required to permit them to appeal the convictions, they asked the
judge to impose a higher penalty. Parrott, well aware that the attorneys
intended to use the case to raise a constitutional challenge, increased it to
$125 with the agreement of the prosecutor.[26]
To appeal, Lawrence and Garner needed to have their cases tried in Harris
County Criminal Court. Their attorneys asked the court to dismiss the charges
against them on Fourteenth Amendment equal protection grounds, claiming
that the law was unconstitutional since it prohibited sodomy between same-
sex couples, but not between heterosexual couples. They also asserted a
right to privacy and that the Supreme Court's decision in Bowers v. Hardwick
that found no privacy protection for consensual sex between homosexuals
was "wrongly decided".[27] On December 22, Judge Sherman Ross denied the
defense motions to dismiss. The defendants again pleaded "no contest".
Ross fined them $200 each, the amount agreed upon in advance by both
A three-judge panel of the Texas Fourteenth Court of Appeals heard the case
on November 3, 1999.[29] Their 2–1 decision issued on June 8, 2000, ruled the
Texas law was unconstitutional. Justice John S. Anderson and Chief Justice
Paul Murphy found that the law violated the 1972 Equal Rights Amendment to
the Texas Constitution, which bars discrimination based on sex, race, color,
creed, or national origin. J. Harvey Hudson dissented.[30] The Court of Appeals
decided to review the case en banc. On March 15, 2001, without hearing oral
arguments, it reversed the three-judge panel's decision and upheld the law's
constitutionality 7–2, denying both the substantive due process and equal
protection arguments.[31] Attorneys for Lawrence and Garner asked the Texas
Court of Criminal Appeals, the highest appellate court in Texas for criminal
matters, to review the case. After a year's delay, on April 17, 2002, that
request was denied. Lambda Legal's Harlow called that decision "a major
abdication of judicial responsibility". Bill Delmore, the Harris County
prosecutor who argued the case, called the judges "big chickens" and said:
"They have a history of avoiding the hot potato cases if they can."[32]
Consideration by the Supreme Court[edit]
In a petition for certiorari filed in the U.S. Supreme Court on July 16, 2002,
Lambda Legal attorneys asked the Court to consider:[33]
1 Whether the petitioners' criminal convictions under the Texas
"Homosexual Conduct" law—which criminalizes sexual intimacy by
same-sex couples, but not identical behavior by different-sex couples—
violate the Fourteenth Amendment guarantee of equal protection of the
2 Whether the petitioners' criminal convictions for adult consensual
sexual intimacy in their home violate their vital interests in liberty and
privacy protected by the Due Process Clause of the Fourteenth
3 Whether Bowers v. Hardwick should be overruled.
On December 2, 2002, the Court agreed to hear the case. Lambda Legal
coordinated the submission of sixteen amicus curiae briefs to complement
their own brief. Submitting organizations included the American Bar
Association, the American Psychological Society, the American Public Health
Association, the Cato Institute, the Log Cabin Republicans, a group of history
professors, and a group of religious denominations.[34] An op-ed in support by
former Sen. Alan Simpson appeared in The Wall Street Journal on the
morning scheduled for oral argument.[35] The attorneys for Texas did not
control the amicus briefs submitted in support of their position. Two were by
noteworthy scholars, Jay Alan Sekulow and Robert P. George,[citation needed] while
the remainder represented religious and social conservatism. Several,
including that of Liberty Counsel, depicted homosexuals as self-destructive,
disease-prone, and promiscuous. The states of Alabama, South Carolina, and
Utah advised the Court that unlike heterosexual sodomy, homosexual
sodomy had "severe physical, emotional, psychological, and spiritual
At oral argument on March 26, 2003, Paul M. Smith, an experienced litigator
who had argued eight cases before the Supreme Court, spoke on behalf of
the plaintiffs.[37] Texas Attorney General John Cornyn, then a candidate for the
US Senate, refused to have his office argue the case. Charles A. Rosenthal,
District Attorney of Harris County, represented the state.[38] His performance
was later described as "the worst oral argument in years", but some believe
his lack of preparation reflected his lack of enthusiasm for the statute he was
On June 26, 2003, the Supreme Court released its 6–3 decision striking down
the Texas statute. Five justices held it violated due process guarantees, and a
sixth, Sandra Day O'Connor, held it violated equal protection guarantees. The
five-member majority opinion overruled Bowers v. Hardwick and implicitly
invalidated similar sodomy statutes in 13 other states.
Majority opinion[edit]

Justice Kennedy, the author of the Court's opinion.

Justice Anthony Kennedy wrote the majority opinion which Justices John Paul
Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer joined.
The Court held that homosexuals had a protected liberty interest to engage in
private, sexual activity; that homosexuals' moral and sexual choices were
entitled to constitutional protection; and that moral disapproval did not provide
a legitimate justification for Texas's law criminalizing sodomy.[41]
Kennedy wrote: "The petitioners [Lawrence and Garner] 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." Kennedy
reviewed the assumption the court made in Bowers, using the words of Chief
Justice Burger's concurring opinion in that case, that "Condemnation of
[homosexual practices] is firmly rooted in Judeao-Christian moral and ethical
standards." He reviewed the history of legislation that criminalized certain
sexual practices, but without regard for the gender of those involved. He cited
the Model Penal Code's recommendations since 1955, the Wolfenden Report
of 1963, and a 1981 decision of the European Court of Human Rights in Case
7525/76 Dudgeon v United Kingdom.[42]
He endorsed the views Justice Stevens had outlined in his dissent in Bowers
and wrote: "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." The majority decision also held that the intimate,
adult consensual conduct at issue here was part of the liberty protected by
the substantive component of the Fourteenth Amendment's due process
protections. Kennedy said that the Constitution protects "personal decisions
relating to marriage, procreation, contraception, family relationships, [and]
child rearing" and that homosexuals "may seek autonomy for these
purposes."[43] Holding that "the Texas statute furthers no legitimate state
interest which can justify its intrusion into the personal and private life of the
individual", the court struck down the anti-sodomy law as unconstitutional.
Kennedy underscored the decision's focus on consensual adult sexual
conduct in a private setting:
The present case does not involve minors. It does not involve persons who
might be injured or coerced or who are situated in relationships where
consent might not easily be refused. It does not involve public conduct or
prostitution. It does not involve whether the government must give formal
recognition to any relationship that homosexual persons seek to enter.[44]