From the outset of U.S. history under English colonization, the legal climate for persons who loved others of their sex was inhospitable. The common law of England prohibited sodomy, and the criminal laws of the colonies in at least one case included lesbian sexual activity within their scope. Death was sometimes prescribed as punishment for sodomy, and people were in fact executed for that offense.
These laws targeted nonreproductive and ‘‘deviant’’ sexual activity, but as recognizable gay identities and communities developed in the United States, the regulatory gaze of government and, in particular, of vice enforcement was trained upon lesbian, gay, and bisexual (collectively termed ‘‘lesbigay’’) people and their meeting places, especially gay bars. State disorderly conduct laws were also used against the founder of the nonprofit Society for Human Rights, which Illinois chartered in 1924 and which was the first organization devoted to protect the rights of lesbigay persons.
Thereafter, the first nationally focused homophile organizations were not formed until the 1950s. Roughly contemporaneously with the formation of the Mattachine Society and the Daughters of Bilitis, the federal government was engaged in a post-World War II campaign to expel not only communists but also ‘‘sex perverts’’ or homosexuals from federal employment. The federal government also excluded homosexual persons as ‘‘sexual psychopaths,’’ and this provision of the immigration laws was upheld by the U.S. Supreme Court in Boutilier v. Immigration and Naturalization Service (1967). State and local governments as well as the federal government censored gay publications, ultimately leading to the Supreme Court’s decision in One, Inc. v. Olesen (1958), which held that a homophile magazine produced by some members of the Mattachine Society was not obscene and therefore could lawfully be mailed.
The step-up of governmental suppression of homosexuality responded to an increased visibility in the postwar era, with gay bars springing up all over the country. States sometimes stripped bars catering to lesbigay clientele of their liquor licenses, and state and local police targeted the bars for raids and shakedowns.
A turning point came in the early morning hours on June 28, 1969. When police raided the Stonewall Inn, an unlicensed mixed gay bar, its patrons unexpectedly resisted. The riot or uprising sparked by the actions of customers, including black and Puerto Rican effeminate gay men and butch lesbians, continued for days. This event is often taken as the advent of the modern lesbian, gay, bisexual, and transgender (LGBT) movement in the United States, first in the form of ‘‘gay liberation,’’ which particularly argued for sexual freedom.
Yet lesbigay people were not at all uniformly libertine. One area in which emboldened gay people sought legal rights in the wake of Stonewall was marriage. Starting in the very early 1970s, a number of same-sex couples filed suits arguing that it violated the U.S. Constitution to deny them the right to marry. These arguments were uniformly rejected, often on conclusory grounds invoking the ‘‘traditional’’ definition of ‘‘marriage,’’ the validity of which was precisely what the litigation contested.
At the same time as these early marriage challenges, the first civil rights law to prohibit sexual orientation discrimination was enacted by East Lansing, Michigan, in 1972. Although Representative Bella Abzug introduced a federal bill to do likewise in 1974, it was not adopted. Through 2005, the sponsors in Congress of the Federal Employment Non- Discrimination Act (ENDA) were unable to secure its passage, although it did come within one vote in the Senate in 1996. More success has been enjoyed on the state and local levels: by the end of 2005 some seventeen states and the District of Columbia prohibited sexual orientation discrimination in employment, with many local governments doing likewise, seeming to signal a maturity of the gay and lesbian rights movement.
Then came AIDS. Although the pandemic brought many people in LGBT communities closer together, it also occasioned rampant discrimination against HIV-positive persons and gay men, who were often taken to be synonymous with HIV infection. In this climate the Supreme Court decided Bowers v. Hardwick, 478 U.S. 186 (1986), the infamous decision that curtailed the constitutional right of privacy and upheld Georgia’s law against oral and anal sex as applied to ‘‘homosexuals.’’ Bowers was bad enough for the gay rights movement on its own terms, but it was also used in defense of all manner of legal discriminations against lesbigay people.
As one example, criminal restrictions on sodomy have been used to justify the exclusion of lesbigay persons from the armed forces. During his 1992 presidential campaign, William Jefferson Clinton pledged to repeal the ban. Once he took office, however, Clinton found strong resistance within military leadership and Congress, which ultimately enacted the statute known as ‘‘Don’t Ask, Don’t Tell.’’ This ostensible compromise removed mere sexual orientation as an official disqualification, but allowed even a bare statement of gay identity to be used as a basis for separation from the services. Although frequently challenged on equal-protection, privacy, and free-speech grounds, the suits against the policy have been unsuccessful to date.
Starting shortly after Don’t Ask, Don’t Tell, the movement for equal marriage rights for same-sex couples took off, galvanized by the Hawaii Supreme Court’s decision in Baehr v. Lewin, 852 P.2d 44 (1993), that the restriction of marriage to differentsex couples was sex discrimination subject to the most searching form of judicial scrutiny. This led to litigation in other states that ultimately resulted in Vermont’s adopting ‘‘civil unions’’ for same-sex couples and Massachusetts opening marriage to same-sex partners. In addition, other states adopted domestic partnership or reciprocal beneficiaries laws to provide same-sex couples with some but not all the legal rights of marriage.
In reaction to the Hawaii decision, however, the federal government in 1996 enacted the Defense of Marriage Act, or DOMA. This statute defines ‘‘marriage’’ as a mixed-sex institution for federal law purposes, thus preemptively refusing to give effect to any state law that would allow same-sex couples to marry. It also purports to authorize individual states to refuse to recognize same-sex marriages performed in other states.
Reacting to activists’ achieving legal protections against sexual orientation discrimination on the local level in Colorado, conservative activists in the early 1990s successfully campaigned to amend the state constitution to repeal all such laws and prohibit every level of government from taking any action to protect lesbigay people from discrimination. The U.S. Supreme Court ruled this backlash effort unconstitutional in Romer v. Evans (1996), which held that amendment two’s far-reaching legal restrictions violated the guarantee of equal protection of the laws.
Then, in 2003, the Supreme Court decided Lawrence v. Texas, No. 02-102 (2003), overruling Bowers v. Hardwick and holding that Texas’s same-sex-only criminal ban on oral and anal sex was unconstitutional. Lawrence brought the U.S. treatment of sodomy laws into line with that of England, which statutorily repealed them as applied to consenting adults in 1967, and indeed of the European Union, whose Court of Human Rights had held such laws to violate the right to respect for private life as early as 1981.
Lawrence removed the crutch of Bowers from opponents of lesbigay rights; yet, in its first few years as precedent its consequences have been limited. The Supreme Judicial Court of Massachusetts cited Lawrence in Goodridge v. Department of Public Health (2003), the case that held the exclusion of same-sex couples from civil marriage to violate the state’s constitution. The Supreme Court of Kansas relied on Lawrence when it invalidated an age-of-consent law that discriminated in favor of different-sex couples in State v. Limon (2005). However, Limon refused to apply heightened scrutiny to the sexual orientation discrimination reflected in the criminal statute, and other courts have similarly minimized the import of Lawrence.
The U.S. Court of Appeals for the Eleventh Circuit, for example, criticized Justice Kennedy’s opinion for the Court in Lawrence in Lofton v. Secretary of Department of Children and Family Services (2004). Lofton upheld Florida’s categorical ban on adoption by homosexual persons, the only law of its kind in the country, and the Supreme Court let that decision stand. Apparently, the justices were of the view that only a limited amount of progress in the area of gay and lesbian rights could come from the federal courts at that moment and that more work would need to be done through state court litigation and through the political process.
DAVID B. CRUZ
References and Further Reading