Chapter 70: Civil Rights Case Study–Sexual Orientation

“You can have as many debates about gay marriage as you want, and over the last 22 years of campaigning for it, I’ve had my share. You can debate theology, and the divide between church and state, the issue of procreation, the red herring of polygamy, and on and on. But what it all really comes down to is the primary institution of love. The small percentage of people who are gay or lesbian were born, as all humans are, with the capacity to love and the need to be loved. These things, above everything, are what make life worth living. And unlike every other minority, almost all of us grew up among and part of the majority, in families where the highest form of that love was between our parents in marriage. To feel you will never know that, never feel that, is to experience a deep psychic wound that takes years to recover from.”

—Andrew Sullivan in 2011 (1)

Background and Historical Development of Homosexuality as an Identity

Most Americans think of the gay rights movement as a recent phenomenon of the 1980s and 1990s, but it is actually somewhat older than that. Of course, homosexual behavior is as old as human civilization and evident across both tolerant and intolerant societies. Homosexuality as a form of personal identity—or even as a sexual orientation beyond one’s voluntary control—is a much newer concept. While some scholars claim that a continuous gay subculture has existed in the West since as early as the twelfth century, everyone agrees that by the early 1700s, Europe possessed numerous established meeting places for homosexuals. John D’Emilio argues that modern capitalism transformed the family as an economic unit, and wage labor in a capitalist market opened a space for the development of what we call homosexuality today. He suggests that “Only when individuals began to make their living through wage labor, instead of as parts of an interdependent family unit, was it possible for homosexual desire to coalesce into a personal identity—an identity based on the ability to remain outside the heterosexual family and to construct a personal life based on attraction to one’s own sex. By the end of the [nineteenth] century, a class of men and women existed who recognized their erotic interest in their own sex, saw it as a trait that set them apart from the majority, and sought others like themselves.” (2)

The American colonists followed the precedent of their English cousins and outlawed sodomy, by which they meant all forms of nonprocreative sex, whether by individuals, heterosexual couples, or homosexual couples. Over time, however, laws against sodomy tended to be used more often against homosexual activity, and specifically anti-gay laws also went into effect. Rhode Island forbade sex between women in 1647, as did New Haven in 1655, and Massachusetts forbade cross-dressing in 1696. The laws governing sexual behavior were put in place to enforce a hetero-normative, marriage-and-family-centric worldview. But as Dartmouth College professor Michael Bronski wrote, puritanical societies of colonial America were “extraordinarily intolerant” at the same time that they were “often surprisingly lax.” While the laws were quite strict and enforced with imprisonment, the lash, and capital punishment in celebrated cases, there does seem to be quite a bit of evidence that people could privately engage in homosexual behavior—even when others knew about or suspected it was happening—so long as it did not rile the public. This was probably easier to pull off in cities than it was in small towns. (3)

By the latter part of the nineteenth and early part of the twentieth centuries, just as the medical profession deemed same-sex attraction a disorder, some homosexuals came to see themselves as positively defined by their sexual orientation. Many others repressed or hid their identities from their families, their employers, and from themselves. It is primarily for this reason that the historical incidence of homosexuality is almost certainly underrepresented. For those who embraced their sexual orientation, it was important for them to meet and develop relationships with other gay men and women. By the 1910s and 1920s, gay and lesbian bars, bathhouses, cafés, restaurants, and music halls were flourishing in most large American cities such as New York, Chicago, Boston, San Francisco, St. Louis, and Los Angeles. Other homosexuals formed private social clubs or cruised notorious pick-up areas in major cities. They faced prosecution, social ostracism, and employment discrimination if they were caught. (4)

In England, celebrated playwright Oscar Wilde (1854-1900) was convicted and imprisoned in 1895 for “gross indecency with other male persons” and for corrupting young men. The trial made famous this euphemism for homosexuality: “The love that dares not speak its name.” Wilde eloquently defended his behavior—“There is nothing unnatural about it,” he said on the stand. Oscar Wilde’s trial and conviction “provided the stamp of legitimacy for the suppression of any public mention of same-sex love and served as a warning to its adherents.” (5)

The Early Gay Rights Movement

Given this context, it is easy to see that it was difficult for anyone to start an organized gay liberation movement. One of the first organizations dedicated to promoting the equality of gays and lesbians was the Scientific-Humanitarian Committee founded in 1897 by Magnus Hirschfeld in Berlin.  This committee dedicated itself to removing Paragraph 175 from Germany’s legal code, which penalized male homosexuality: “A man who fornicates with another man or lets himself be so abused will be punished with imprisonment.” (6) Hirschfeld also directed the Institute for Sexual Research in Berlin. In surveys conducted in 1912 among 17,160 people, the Institute documented that the rate of homosexuality was 2.29 percent. (7) Other homosexual groups and gay-themed journals were started in Germany in the early part of the twentieth century, all of which flourished during the Weimar Republic in the 1920s. Finally, after much lobbying, the Reichstag approved a reform bill in 1929 that no longer penalized homosexuality. All these developments were reversed when the Nazis came to power in 1933. On May 6, 1933, the Nazis ransacked the Institute for Sexual Research and burned its library of 10,000 books on sex and gender. The Nazis went on to persecute homosexuals throughout Germany, a task made easier because local German police stations kept “pink lists” of gay men in each community. In 1936, Heinrich Himmler, head of the dreaded SS, created the Reich Central Office for the Combating of Homosexuality and Abortion. Around 100,000 German homosexuals—almost all gay men—were arrested, many were sent to prisons, and thousands of them perished in concentration camps. (8)

The nascent American gay liberation movement learned lessons from the European experience and attempted unsuccessfully to jumpstart change in American society. Members of the German Scientific-Humanitarian Committee lectured in New York early in the twentieth century. The Society for Human Rights, formed by Henry Gerber (1892-1972) in Chicago in 1924, was the first gay rights group in America. The Society set out to publish a journal, make connections with European gay rights groups, and publicly make the case that sodomy laws should be repealed, but its leaders were quickly arrested and prosecuted by Chicago police. The cost of defending himself at three separate trials bankrupted Henry Gerber, even though the charges were ultimately dismissed. He lost his job at the Postal Service, and the Society didn’t survive its leaders’ prosecution. Gerber quietly spent the rest of his life helping gay men develop a sense of community and connection. Meanwhile in New York, the Veterans Benevolent Association formed in 1945 and attempted to secure G. I. Bill benefits for homosexual veterans who had been dishonorably discharged. It did not succeed. (9)

Persecution of homosexuals ramped up during the McCarthy period—i.e., late 1940s and the 1950s—as the federal government looked for national security risks by investigating the private lives of its employees. Between 1950 and 1953, between 40 and 60 homosexuals a month were driven out of their government positions. (10) State and local governments persecuted homosexuals as well by continually raiding gay establishments and hangouts, prosecuting people either for being gay or for homosexual behavior, and removing homosexuals from government positions.

The modern gay rights movement was born in the midst of this persecution. In 1947 under the pseudonym Lisa Ben, which is an anagram of “lesbian,” Edythe Eyde wrote Vice Versa: America’s Gayest Magazine, America’s first regular homosexual publication. (11) In 1951 a group led by Harry Hay (1912-2002) founded the Mattachine Society, which was dedicated to changing the public’s mind about the “deviancy” of homosexuals. Founded in Los Angeles, the group took its name from Mattacino, an Italian theatrical jester character who spoke the truth to the king from behind a mask. Similar societies were created in large cities across the country. In its mission statement, the Mattachine Society pledged to unify “homosexuals isolated from their own kind,” to educate homosexuals and heterosexuals toward “an ethical homosexual culture,” and to assist “our people who are victimized daily.” (12) The Society published a homophile magazine called One, which was initially banned by the Post Office. The Supreme Court ruled in 1958 that the ban violated the Mattachine Society’s first amendment rights. The Society was very influential in the gay rights movement in the 1960s but became eclipsed in the 1970s by more militant groups. It finally disbanded in 1987. The first postwar lesbian organization was the Daughters of Bilitis, founded in 1955 in San Francisco by Del Martin and Phyllis Lyon. It, too, created a magazine—in this case called The Ladder. Active throughout the 1950s and 1960s, the Daughters of Bilitis survived until it was broken apart in the 1970s by internal factionalism. In 1957 Frank Kameny was fired from his government position with the Army Map Service because he was gay. He sued the government, and his case became the first civil rights case on the issue of sexual orientation to reach the Supreme Court. He lost, but did not give up the fight. In 1965 he organized the first gay rights demonstration in front of the White House. He received a formal apology from the U.S. government in 2009 for his unjust dismissal from federal service.

From Compton’s Cafeteria to Don’t Ask Don’t Tell

In August of 1966, a group of trans women, fed up with the regular abuse they took at the hands of police, sparked a riot at Gene Compton’s Cafeteria in the Tenderloin District of San Francisco. As described by Sam Levin in The Guardian, “the night ended with overturned tables, a destroyed police car, a newsstand set on fire, and the women hauled off in officer’s paddy wagons.” (13) The most well-known event in the history of the American gay liberation movement is without a doubt the Stonewall Rebellion. The Stonewall Inn was a gay bar in the Greenwich Village section of New York City. Eight police officers raided the establishment after midnight on June 28, 1969. This was not an unusual occurrence, but on that night the police met considerable resistance from Stonewall patrons and others in the neighborhood. More police arrived, beating protesters—who, in turn, were throwing bottles and rocks. Eventually, hundreds of police officers were battling a couple thousand protesters. The rioting lasted three nights. This was the first time that large numbers of homosexuals resisted police action, and it energized an already-forming nationwide revitalization of the gay-liberation movement. Activists founded new groups such as the Gay Liberation Front and the Gay Activists Alliance, and employed traditional political tactics such as marches, demonstrations, strikes, boycotts, lobbying, campaigning, and fund-raising.

Aside from making political demands to decriminalize homosexuality and to end discrimination against homosexuals, gay rights groups targeted the medical establishment’s century-old stance that homosexuality was an illness. That line became untenable as research into the nature of homosexuality increasingly suggested that problems suffered by gays and lesbians were less a result of their sexual orientation and more a result of homophobia, discrimination, alienation from families, and social marginalization. As early as 1948, with the publication of Alfred Kinsey’s Sexual Behavior in the Human Male, the medical community knew that 4 percent of men were exclusively homosexual throughout their lives. Then, in 1953, Kinsey published Sexual Behavior in the Human Female, which documented that 1 percent of women were exclusively homosexual throughout their lives. The National Association of Mental Health passed a resolution in 1970 calling to decriminalize homosexuality. In 1972, the National Association of Social Workers decided to reject the notion that homosexuality was an illness. By 1975, both the American Psychological Association and the American Psychiatric Association had voted to remove homosexuality from their lists of pathologies.

The 1970s and 80s also saw changes in the political sphere. In 1974, Elaine Noble became the first openly lesbian woman elected to public office. She won a seat in the Massachusetts state House of Representatives. In an interview, Noble said that her first campaign was “ugly,” with gunshots through her windows, and harassment of people visiting her house and campaign office. Once, while in office, feces were left in her desk. She won re-election in 1976. (14) In 1978, Harvey Milk took office as the first openly gay man elected to public office, having been elected in November of 1977 to be on the San Francisco Board of Supervisors. Ten days after the election he recorded three tapes that he gave to friends and his lawyer, to be listened to in the event of his assassination. He said, “I fully realize that a person who stands for what I stand for—a gay activist—becomes the target or potential target for a person who is insecure, terrified, afraid, or very disturbed themselves.” He sponsored a bill banning discrimination in San Francisco on the basis of sexual orientation, and Mayor George Moscone signed it into law. On November 27, 1978, Dan White, a former member of the Board of Supervisors who had recently resigned his position and then asked to be reinstated, assassinated Mayor Moscone and Harvey Milk with a .38 revolver. (15)

In 1994 President Bill Clinton’s administration instituted a Don’t Ask, Don’t Tell policy in the U.S. military. The practice of drumming people out of the military for their sexual orientation was as old as the republic. The Don’t Ask, Don’t Tell policy essentially allowed homosexual men and women to serve in the military as long as they remained closeted—which was the don’t tell part of the policy. The military would not actively look for gays and lesbians in the ranks—the don’t ask part of the policy—but it would not tolerate them if they were discovered. In 2010, Democrats in the House of Representatives amended the Defense Authorization Act to end Don’t Ask, Don’t Tell and allow gays and lesbians to serve openly in the military, but Republicans led by Senator John McCain successfully filibustered it in the Senate. Later that year, a standalone bill ending Don’t Ask, Don’t Tell finally passed both chambers and was signed by President Barack Obama.

Marriage Equality and the Equality Act

A high-profile issue with respect to the gay liberation movement was marriage equality. (16) The marriage equality issue came to a legal battle pitting civil rights leaders against two prominent attempts to stop the cultural shift in favor of marriage equality: The Defense of Marriage Act and California’s Proposition 8. In 1996, Congress passed what it called the Defense of Marriage Act (DOMA), which defined marriage for federal purposes to exclude same-sex marriage and also permitted states to refuse to recognize same-sex marriages performed in other states. At the time, no state allowed same-sex marriages, but it soon became legal in some places either as a result of court decisions or changes in state law. Challenges to DOMA and California’s Proposition 8 worked their way up to the Supreme Court, and in 2013, the Supreme Court issued rulings on both.

In United States v. Windsor (2013), the Court invalidated those portions of DOMA that denied federal benefits to same-sex marriage partners. The New York Times summarized the case this way:

The case before the justices concerned two New York City women, Edith Windsor and Thea Clara Spyer, who married in 2007 in Canada. Ms. Spyer died in 2009, and Ms. Windsor inherited her property. The federal law did not allow the Internal Revenue Service to treat Ms. Windsor as a surviving spouse, and she faced a tax bill of about $360,000, which a spouse in an opposite-sex marriage would not have had to pay. (17)

In a 5-4 decision, the progressive justices pulled Justice Anthony Kennedy onto their side, and the Court ruled in favor of Ms. Windsor. The Defense of Marriage Act’s provisions regarding the federal definition were declared unconstitutional.

The second case centered on California’s Proposition 8, which was a ballot initiative that passed with 52 percent of the vote in 2008 to amend the California state constitution to forbid gay marriage. The proposition was upheld by state courts but challenged in federal courts as well. In 2010, a federal district court ruled that Proposition 8 was an unconstitutional violation of the Fourteenth Amendment’s due process and equal protection clauses. The state of California refused to participate in the appeal and the case–Hollingsworth v. Perry (2013)—was appealed to the Supreme Court by the original private proponents of Proposition 8. However, the Court ruled on technical grounds that the private proponents of Prop 8 did not have standing to bring the appeal, and that decision left in place the lower federal court’s ruling that Prop 8 is unconstitutional. Both Hollingsworth v. Perry (2013) and United States v. Windsor (2013) were decided by narrow 5-4 decisions.

The legal fallout from the Windsor case was swift. In Utah, a federal judge named Robert Shelby struck down a state referendum that had defined marriage as one man and one woman, writing, “Applying the law as it is required to do, the court holds that Utah’s prohibition on same-sex marriage conflicts with the United States Constitution’s guarantees of equal protection and due process under the law. The State’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason. Accordingly, the court finds that these laws are unconstitutional.” (18) A test case arose almost immediately. James Obergefell and John Arthur married in Maryland right after the Windsor case was decided, and then sued the state of Ohio, their state of residence, when it refused to recognize their union. By the time the case reached the Supreme Court in 2015, it had been joined with three other similar cases from different jurisdictions around the country. The Court ruled 5-4 in Obergefell v. Hodges (2015) that state prohibitions against same-sex marriages were unconstitutional, as was the portion of the Defense of Marriage Act that allowed states to refuse to recognize gay marriages performed in other states.

In 2020, the Supreme Court ruled that the 1964 Civil Rights Act’s prohibition of workplace discrimination based on “sex” covered discrimination against members of the LGBTQ community as well. (19) In 2022 Congress passed the Respect for Marriage Act, which required that states must recognize same-sex marriages across state lines and also made clear that same-sex couples have the same federal benefits as any married couple. However, it did not require states to allow gay marriages in their own statutes—and so they could go back to not allowing such marriages if the Supreme Court overturned its own precedent in Obergefell.  The Respect for Marriage Act also specifically allowed religious organizations to refuse goods and services to gay marriages without losing their tax exempt status. Lest one think that the United States has come to accept equal and fair treatment for all people regardless of their sexual orientation or their adherence (or not) to gender binaries, one is always reminded that legal and social commitments to LGBTQ equality remain under assault. Indeed, the Human Rights Campaign named 2021 as the worst year in recent history for LGBTQ rights as conservatives enacted a “record-shattering number of anti-LGBTQ measures into law.” (20)

References

1. Andrew Sullivan, “Why Gay Marriage is Good for America,” Newsweek. July 18, 2011.

2. John D’Emilio, Making Trouble. Essays on Gay History, Politics, and the University. New York: Routledge, 1992. Page 8.

3. Michael Bronski, A Queer History of the United States. Boston: Beacon Press, 2011. Chapter 1.

4. Aside from the sources already cited in notes 2 and 3, see also John D’Emilio and Estelle B. Freedman, Intimate Matters: A History of Sexuality in America. Third Edition. Chicago: The University of Chicago Press, 2012.

5. Barry D. Adam, The Rise of a Gay and Lesbian Movement. Revised edition. London: Twayne Publishers, 1995. Page 35.

6. Author’s translation of Paragraph 175 as displayed by the United States Holocause Memorial Museum.

7. Magnus Hirschfeld, Die Homosexualitat des Mannes and des Weibes. Originally published in 1914. Translated by Michael A. Lombardi-Nash and published by Prometheus Books in 2000. Page 544. Available here.

8. No Author, “Persecution of Homosexuals,” United States Holocaust Memorial Museum. No date.

9. Michael Waters, “Why Did Gay Rights Take So Long?” The Atlantic. November 9, 2022. Lillian Faderman, The Gay Revolution. The Story of the Struggle. New York: Simon & Schuster, 2015. Page 55.

10. John D’Emilio, Sexual Politics, Sexual Communities. Chicago: University of Chicago Press, 1983. Pages 41-44.

11. Bronski, Queer History, 176.

12. Adam, The Rise of a Gay and Lesbian Movement, 68.

13. Sam Levin, “Compton’s Cafeteria Riot: A Historic Act of Trans Resistance, Three Years Before Stonewall,” The Guardian. June 21, 2019.

14. Elaine Noble interviewed for Out and Elected in the USA. Archived here.

15. Lillian Faderman, Harvey Milk. His Lives and Death. New Haven: Yale University Press, 2018.

16. Author’s note: Since the people I knew who were advocating for change simply wanted civil marriage on an equal footing with heterosexual couples, the oft-used term gay marriage always struck me as a term that segregated marriage as a concept. I never accepted the division between gay marriage and straight marriage. There is only marriage, so this text uses marriage equality as the label for the issue and same-sex marriage when necessary to describe what conservatives wished to ban.

17. Adam Liptak, “Supreme Court Bolsters Gay Marriage With Two Major Rulings,” The New York Times. June 26, 2013.

18. Kitchen, et al. v. Herbert, et al. (2013)

19. Bostock v. Clayton County, Georgia (2020).

20. Wyatt Ronan, “2021 Officially Became the Worst Year in Recent History for LGBTQ State Legislative Attacks as Unprecedented Number of States Enact Record-Shattering Number of Anti-LGBTQ Measures into Law,” Human Rights Campaign press release. May 7, 2021.