The goal of full legal and social equality for gay men and lesbians sought by the gay movement in the United States and other Western countries.
The term gay originally derived from slang, but it has gained wide acceptance in recent years, and many people who are sexually attracted to others of the same sex prefer it to the older and more clinical term homosexual. The drive for legal and social equality represents one aspect of a broader gay and lesbian movement that, since the late 1960s, has worked to change attitudes toward homosexuality, develop gay community institutions, and improve the self-image of gay men and lesbians.
Although homosexuality has been recorded in every historical period and culture, the gay and lesbian rights movement developed only with the emergence of a self-conscious, gay-identified subculture that was willing to openly assert its demands for equality. Until the 1960s, virtually all lesbians and gay men were secretive about their sexual orientation and frequently shared the attitude of the general society that homosexuality was sick, sinful, or both. The phrase "in the closet" refers to gay men and lesbians who hide their sexual orientation.
The first national gay organizations in the United States were the Mattachine Society (1951) and the Daughters of Bilitis (1956). The emergence of the civil rights movement of the 1960s energized gay and lesbian groups, and the development of the women's movement of the late 1960s made explicit the link between political activities and personal identity.
The watershed moment for gay men and lesbians occurred in 1969 when the patrons of the Stonewall Inn, a gay bar in New York City's Greenwich Village, forcefully resisted arrest by city police officers who had raided the bar. Stonewall became a symbol for a new set of attitudes on the part of younger gay men and lesbians who resisted discrimination and negative stereotyping. As gay men and lesbians became more open and decided to "come out of the closet," U.S. society was challenged to question assumptions about homosexuality.
Though most gay and lesbian rights activity remains local, national organizations such as the National Gay Task Force, the Lambda Defense and Education Fund, and the Human Rights Campaign have played a significant role in challenging discriminatory treatment. For example, in 1974, the National Gay Task Force successfully lobbied the American Psychiatric Association to remove homosexuality from its list of mental disorders.
The recognition of gay and lesbian rights has been accomplished through both court challenges and legislative action. The ability of gay and lesbian organizations to make significant financial contributions to political candidates has helped lead to more sympathetic hearings in the legislative arena.
Criminal Prohibitions on Sexual Activity
Most gay men and lesbians remained in the closet until the modern movement for equality because homosexual behavior has been a crime throughout U.S. history. Homosexual activity includes anal sex and oral sex, which have been labeled sodomy. Criminal laws against sodomy date from the colonial period, when a conviction for a "crime against nature" could lead to a death sentence. Although few if any people have ever been executed for sodomy, the penalties for this crime have remained heavy, and the act is now classified a felony in states that have sodomy statutes.
Advocates of gay and lesbian rights have made the repeal of sodomy statutes a leading goal. Twenty-seven states have repealed these statutes, usually as part of a general revision of the criminal code and with the recognition that heterosexuals as well as homosexuals engage in oral and anal sex.
The Supreme Court has found that state laws prohibiting homosexual sodomy are not unconstitutional. In Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986), the Court upheld the Georgia sodomy statute (Ga. Code Ann. § 16-6-2 [1984]). Michael Hardwick was arrested and charged with committing sodomy with a consenting male adult in the privacy of his home. Although the state prosecutor declined to prosecute the case, Hardwick brought suit in federal court, seeking a declaration that the statute was unconstitutional.
Writing for the majority, Justice Byron R. White rejected the argument that previous decisions such as the Court's rulings on abortion and contraception had created a right of privacy that extends to homosexual activity. Instead, the Court drew a sharp distinction between the previous cases, which involved "family, marriage, or procreation," and homosexual activity.
The Court also rejected the argument that a fundamental right to engage in homosexual activity can be found in the Due Process Clauses of the Fifth and Fourteenth Amendments. Justice White observed that the rights protected under those clauses have been characterized as fundamental liberties implicit in the concept of ordered liberty and as liberties that are deeply rooted in tradition. In contrast, prohibitions against sodomy have appeared in the laws of most states since the nation's founding.
To the argument that homosexual activity should be protected when it occurs in the privacy of a home, Justice White said that "otherwise illegal conduct is not always immunized whenever it occurs in the home." For example, the possession of drugs or stolen goods is not protected because it occurs at home.
Hardwick was a setback to the gay and lesbian rights movement, as it allowed opponents to argue that it was absurd to grant civil rights to persons who engage in criminal acts.
Antidiscrimination Laws
Advocates of gay and lesbian rights have sought the passage of legislation that prohibits discrimination in employment, housing, public accommodations, or public service on the basis of sexual orientation. Many U.S. cities have passed gay rights ordinances that accomplish these objectives. In 1982, Wisconsin became the first state to pass gay rights legislation.
At the national level, gay men and lesbians have fought legal battles in the 1980s and 1990s to allow them to serve in the armed services. A series of lawsuits were filed that sought to overturn military regulations that mandated discharge for disclosing a homosexual orientation.
In Meinhold v. United States Department of Defense, 34 F.3d 1469 (9th Cir. 1994), a three-judge panel ruled that Petty Officer Keith Meinhold, of the U.S. Navy, could not be discharged for stating on a national television broadcast that he was gay. In the discharge proceedings, the Navy had taken the position that Meinhold should be discharged even though the Navy had not proved that Meinhold had committed any act of homosexual conduct.
The Ninth Circuit Court of Appeals concluded that a Navy policy against homosexual conduct was constitutional, as it was based on the Navy's professional judgment that homosexual conduct "seriously impairs the accomplishment of the military mission." However, the court of appeals ruled that Meinhold's statement that he was gay was not grounds for discharge. In the court's view, Meinhold had not demonstrated "a concrete, expressed desire to commit homosexual acts." Thus, the focus for the armed services must be on prohibited conduct and persons who are likely to engage in prohibited conduct.
The issue moved into the political arena following President Bill Clinton's election in November 1992. Clinton promised to honor his campaign pledge to exercise his authority as commander in chief of the armed forces, and remove the military ban against gays. But the Joint Chiefs of Staff, headed by General Colin L. Powell, and many other senior Pentagon officers strenuously objected to Clinton's plan, claiming that ending the ban would interfere with military order, discipline, and morale. Led by Senator Sam Nunn (D-Ga.), chairman of the powerful Armed Services Committee, Congress demanded an opportunity to comment on the policy.
Faced with increasing pressure at the beginning of his administration, Clinton agreed to a six-month delay in lifting the ban. He agreed to establish a temporary policy developed by Nunn, and issued a directive ordering the military to stop asking new recruits about their sexual orientation; stop investigations to ferret out gays in uniform; and suspend current cases seeking to discharge gays, as long as those cases were based solely on homosexual status rather than on improper conduct. This policy, dubbed "don't ask, don't tell," became permanent when Congress wrote it into law in September 1993 (Pub. L. No. 103-160, 1993 H.R. 2401 § 571(a)). With this policy, gay men and lesbians were directed to keep their sexuality hidden if they intended to pursue a military career.
Legal Recognition of Gay and Lesbian Relationships
Gay and lesbian activists have pressed for legal recognition of homosexual relationships. Under current law, a gay couple is treated differently than a married heterosexual couple. Thus, the benefits of probate and tax law are denied same-sex couples. For example, if a partner in a same-sex relationship dies, under law, the surviving partner is not entitled to any of the deceased's property, unless the deceased provided for such an entitlement in a will.
With the appearance of AIDS, health benefits became particularly important to gay couples. Unless a company or government unit makes specific provisions for same-sex couples, an employee's same-sex partner who is not employed by the organization will not be allowed to join the employee's health plan.
Faced with these disparities, gay and lesbian activists first focused their attention on "domestic partnership" laws that would allow unmarried couples to register their relationship with a municipality. Attempts to implement domestic partnership failed in several cities, but New York City, New York; Madison, Wisconsin; Takoma Park, Maryland; and Berkeley, San Francisco, Santa Cruz, and West Hollywood, California, have enacted this type of ordinance.
A more radical attempt to redefine the family and domestic relationships occurred in Hawaii, where gay and lesbian couples filed a lawsuit when they were refused a marriage license. The issue of same-sex marriage reached the Hawaii Supreme Court in Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993). The court ruled that the state must have a compelling state interest in order to ban same-sex marriages. Though the court did not make a final ruling on the issue, it sent the case back to the lower court with instructions to apply the highest level of constitutional scrutiny to Hawaii's marriage law, Hawaii Revised Statutes, section 572-1. Many legal commentators believe the state will not be able to show a compelling state interest.
This decision triggered a national debate, raising the ire of groups such as the Family Research Council and the Roman Catholic Church. Even some gay rights advocates argued that assimilationist goals such as those reflected by the plaintiffs in Baehr were an affront to their movement and a means of subverting an alternative lifestyle.
The issue of same-sex marriage is of national interest because states traditionally accord full faith and credit (full legal recognition) to marriages performed in other states. Faced with the prospect of gay and lesbian couples flying to Hawaii and then demanding legal recognition of their union, several state legislatures passed laws that forbid recognition. Congress responded in 1996 with the introduction of the Defense of Marriage Act (H.R. 3396, 104th Cong., 2d Sess.). The bill denies certain federal benefits and entitlements to same-sex marriage partners by defining marriage as a union between a man and a woman. It also allows states to ban same-sex marriages within their borders and to not recognize such marriages performed in other states. Critics of the bill argued that Republicans were pushing it for political purposes, yet Democratic President Clinton indicated he would sign the bill into law if it reached his desk.
In contrast to the national focus on issues such as same-sex marriage, local gay and lesbian groups have spent their energies helping defend lesbian mothers and gay fathers faced with the loss of their children in custody cases. In the Virginia case of Bottoms v. Bottoms, 18 Va. App. 481, 444 S.E.2d 276 (1994), a trial judge awarded custody of Sharon Bottoms's son to her mother, solely because Bottoms is a lesbian. The Virginia Court of Appeals reversed the decision as an abuse of the court's discretion and returned custody to the mother. This case indicates the problems gay men and lesbians have in court. The National Center for Lesbian Rights believes that only approximately one hundred homosexuals gained parental rights through the courts between 1985 and 1994.
Backlash
As the same-sex marriage issue demonstrates, the efforts of gay men and lesbians to achieve social and legal equality have generated a backlash from those who oppose their agenda. Domestic partnership acts and gay rights ordinances have been rejected by voters in a number of cities and municipalities, including Irvine and Concord, California. At the state level, the voters of Oregon in 1988 approved a referendum that repealed an executive order by former governor Neil Goldschmidt that had prohibited state agencies from discriminating based on sexual orientation. Measure 8, as the referendum was labeled, never went into effect, as the Oregon Court of Appeals ruled it unconstitutional (Merrick v. Board of Higher Education, 116 Or. App. 258, 841 P.2d 646 [1992]).
Undaunted by this court decision, the antigay Oregon Citizens Alliance placed a referendum on the 1992 Oregon ballot called Measure 9. Measure 9 was a strongly worded initiative that would have prohibited civil rights protection based on sexual orientation and required state and local governments and school districts to discourage homosexuality. Proponents of the initiative believed that homosexuality was abnormal and perverse. The referendum was rejected on November 3, 1992, by a margin of 57 to 42 percent.
In contrast, voters in Colorado signaled a distinct displeasure with gay and lesbian rights. In November 1992, Colorado took the unprecedented step of amending the state constitution to prohibit state and local governments from enacting any law, regulation, or policy that would, in effect, protect the civil rights of gays, lesbians, and bisexuals. The amendment, known as Amendment 2, did not go into effect, as a lawsuit was filed challenging the constitutionality of the new provision.
This lawsuit — Romer v. Evans, ___U.S.___, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996) — reached the U.S. Supreme Court. In a landmark and controversial decision, the Supreme Court struck down the amendment as unconstitutional. Justice Anthony M. Kennedy, writing for the majority, declared that the Colorado provision violated the Equal Protection Clause of the Fourteenth Amendment. The Court found that the amendment did more than repeal state and municipal gay rights laws. The amendment prohibited "all legislative, executive or judicial action at any level of state or local government designed to protect … gays and lesbians." Under this provision, the only way gay men and lesbians could secure their civil rights was through amendment of the state constitution. This approach was too limited. Kennedy concluded that "[i]t is not within our constitutional tradition to enact laws of this sort." The Colorado amendment classified gay men and lesbians "not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do."
The Romer decision was a major advance for gay and lesbian rights, as in it, the Supreme Court made clear that states cannot use a broad brush to limit civil rights. The political process cannot be changed to prevent gay men and lesbians from using the political and legal tools afforded all other citizens. The decision did suggest, however, that it is not unconstitutional to repeal specific legislation that favors gay rights.
The quest by gay men and lesbians for legal and social equality has both empowered a historically stigmatized subculture and enraged conservative groups in U.S. society. Issues of morality, sexuality, and family always generate social friction. The U.S. legal system is likely to see many more challenges involving gay and lesbian rights.
See: Acquired Immune Deficiency Syndrome; Child Custody; Equal Protection; Full Faith and Credit Clause.
