Gay and Lesbian Rights

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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, gayidentified 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 as of 2003 classified as a felony in states that have sodomy statutes (Arkansas, however, classified sodomy as a Class A misdemeanor).

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 Hard-wick 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.

The Court 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. 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. To the argument that homosexual activity should be protected when it occurs in the privacy of a home, Justice byron r. white, writing for the majority, 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.

In December 2002, the Supreme Court agreed to reconsider the constitutionality of sodomy laws. As of 2003, 14 states still have active sodomy laws. In four of these states, including Texas, these sodomy laws apply only to homosexual conduct.

In 1998, John Lawrence and Tyron Garner were convicted on charges of sodomy under Tex. Pen. Code § 21.06 (Vernon 2003). Officers, responding to a false report that the two men had possession of illegal weapons, entered an apartment and found the men engaged in sex. Upon conviction for sodomy, they were each fined $200. They appealed their convictions to a Texas appellate court, which found that the sodomy law did not violate either the U.S. or the Texas constitutions. lawrence v. texas, 41 S.W.3d 349 (Tex. App. 2001). The Texas Court of Criminal Appeals denied a petition for discretionary review, but the U.S. Supreme Court granted certiorari. In June 2003 the Court reversed the judgment of the lower court. Justice Kennedy, writing the majority opinion, stated: "The petitioners 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. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government." Thus the Court overruled Bowers v. Hardwick.

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 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 over-turn 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 Mein-hold, 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.

Congress has also considered laws that would include homosexuals as a protected class in some instances. However, these laws have met with strong resistance. For instance, in 1999, a bipartisan congressional group reintroduced the Hate Crimes Prevention Act of 1999 (H.R. 1082, 106th Cong.), which would have given federal authorities the power to investigate and prosecute crimes based on sexual orientation, as well as other forms of hate crimes. Despite the fact that the bill had 192 cosponsors, it did not pass through Congress. Current law limits prosecution of hate crimes to instances where the victim is targeted for engaging in certain federally protected activities, such as serving on a jury, voting, or attending public school.

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 acquired immune deficiency syndrome (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; 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 prohibiting same-sex couples from marrying was a violation of Hawaii's constitutional ban on sex discrimination. The court remanded the case for a determination of whether the state had a compelling interest to preclude the granting of licenses.

Subsequently in Baehr v. Mike, 1196 WL 694235 (1996), the Hawaii trial court ruled that prohibiting same-sex couples from marrying was not justified for any reason, much less a compelling reason as specified by the Supreme Court. The court further ruled that these couples should therefore be allowed to marry. As the case was heading to the Hawaii Supreme Court, a referendum was passed by the voters of Hawaii to amend the constitution to allow the state Legislature to restrict marriage to men and women only. As a result, Hawaii's couples lawsuit was ended and the state restricted marriage solely to that of men and women.

Similar lawsuits have been filed in other jurisdictions, as well. In Brause v. Bureau of Vital Statistics, 1998 WL 88 743 (1998), an Alaskan trial court ruled that choosing a marital partner is a fundamental right and cannot be interfered with by the state absent a compelling reason. Later that year, the voters amended the Alaska Constitution to require that all marriages be between a man and a woman which, like Hawaii, ended the Alaskan couples lawsuit. In Massachusetts, in Goodridge v. Dept. of Health, Mass.L. Rptr. 591, 2002 WL 1299135, gay and lesbian couples filed a state court lawsuit seeking the right to marry. The suit was dismissed by the trial court and as of late 2003 is on appeal.

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 to marry and then demanding legal recognition of their union in their home states, several state legislatures passed laws that forbid recognition. Congress responded by enacting the Defense of Marriage Act, 1 U.S.C.A. 7. The act denies certain federal benefits and entitlements to same-sex marriage partners by defining marriage as a legal 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.

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 estimates that only approximately one hundred homosexuals gained parental rights through the courts between 1985 and 1994.

Despite the efforts of these local groups, several courts have continued to uphold legislation and judicial rulings that disfavor homosexuals as parents. For example, in 2001, the U.S. District Court for the Southern District of Florida upheld a 1977 Florida law that prohibits homosexuals from adopting children. Lofton v. Kearney, 157 F. Supp. 2d 1327 (S.D. Fla. 2001). Similarly, in 2002, the Alabama Supreme Court ruled unanimously to award custody of three teenagers to their father instead of to their lesbian mother. Ex parte H.H., 830 So. 2d 21 (Ala. 2002).


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 discrimination 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 anti-gay 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, 517 U.S.620, 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.

Legislative and Judicial Responses after Romer v. Evans

State and local governments did not respond uniformly to Romer. A significant number of governmental entities expanded the legal rights of gays and lesbians. By the year 2000, ten states, the District of Columbia, 27 counties, and more than 150 cities had passed laws protecting gays and lesbians from discrimination. Most laws were limited to prohibiting discrimination against homosexuals in the workplace. A few laws went further, however, barring gay discrimination by public accommodations, credit institutions, healthcare providers, educational facilities, and landlords.

Conversely, other state and local governments enacted measures restricting homosexuals' civil rights. Unlike Amendment 2 in Colorado, these measures did not generally attempt to completely exclude gays and lesbians from seeking legal redress for discrimination. Instead, some state and local governments tried to prevent gays and lesbians from exercising particular legal rights traditionally exercised only by heterosexuals. The right to marry and the right to adopt children continue to be the two most frequent targets of these anti-gay laws.

Same-Sex Marriage: A Civil Right or a Moral Wrong?

Since the birth of the U.S. gay and lesbian rights movement in the late 1960s, members of the movement have sought to attain civil rights already granted to racial and ethnic minorities. These attempts at legal change have met with some success, yet a fundamental issue for gay and lesbian couples, that of same-sex marriage, has found strong resistance, even from supporters of gay rights.

Same-sex marriage is controversial not only because it would require legal change but also because it raises a host of issues surrounding the definitions of marriage and family. The issue is packed with social and cultural beliefs and symbols that force parties to the debate to examine basic assumptions about how social life should be ordered. Though the overwhelming majority of opposition comes from heterosexuals, there are also some gays and lesbians who have doubts about the wisdom of same-sex marriage.

Advocates of same-sex marriage argue that many same-sex couples consider themselves married for all intents and purposes. The only thing lacking is legal recognition by the government—in this case, the state government—that such marriages exist. The denial of legal recognition constitutes sexual discrimination, resulting in the loss of legal rights and benefits afforded heterosexual marriages. Thus, unless a surviving member of a same-sex couple has been named in the deceased partner's will, the survivor has no legal right to any portion of the deceased's probate estate—whereas in heterosexual marriages, a surviving spouse has a legal right to such assets. In addition, same-sex couples lose out on health care benefits extended to heterosexual married couples.

The legal arguments for same-sex marriage are grounded in the constitutional concepts of equal protection and due process. Proponents of same-sex marriage point to the U.S. Supreme Court's decision in Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967), which ruled that state laws that prohibited interracial marriages (anti-miscegenation laws) were unconstitutional. The case established that it is a denial of due process of law to forbid marriages on the basis of race and that the creation of such classifications denied couples equal protection of the law because the classifications had "no legitimate purpose independent of invidious racial discrimination."

For advocates of same-sex marriage, Loving was an example of the proper modern legal response to irrational racial prejudice. The Hawaii Supreme Court's decision in Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993), which held that the state must have a compelling state interest in order to ban same-sex marriage, used Loving as a controlling legal precedent.

Opponents of same-sex marriage make three main arguments against it: the definition-of-marriage argument, the moral tradition argument, and the pragmatism argument.

The definition-of-marriage argument goes to basic social and cultural assumptions. Opponents claim that marriage is necessarily the union of heterosexual couples and therefore cannot include same-sex couples. Thus, any statute that describes marriage could have only contemplated heterosexual couples, even if the statute does not use the specific terms husband and wife. In Jones v. Hallahan, 501 S.W.2d 588 (1973), the Kentucky Court of Appeals used this line of reasoning to prohibit same-sex marriage, noting that "marriage has always been considered as the union of a man and a woman and we have been presented with no authority to the contrary."

Proponents of same-sex marriage argue that courts have not been presented with "authority to the contrary" because gays and lesbians have been ignored by historians. Major research on gay and lesbian history and anthropology has led some historians and legal scholars to conclude that Western and non-Western cultures have recognized same-sex relationships. In European history, stigmatizing and closeting of gays and lesbians started at the end of the medieval period and the beginning of the growth of nation-states. Thus, the North American continent was colonized at a time when same-sex relationships had lost their cultural and legal protection.

Opponents of same-sex marriage who make the moral tradition argument state that defining marriage to include only heterosexual couples is justified to preserve family values and traditional ethical notions. They point to passages in the Bible that either affirm heterosexual marriages (Adam and Eve) or denounce homosexual practices (Sodom and Gomorrah). The Judeo-Christian moral tradition formed the basis of english law; thus, it must be assumed that religious teachings against homosexual relationships informed the law. The U.S. Supreme Court echoed the moral tradition argument in its ruling that criminal sodomy laws are not unconstitutional, suggesting that "millennia of moral teaching" supported a state's right to forbid homosexual acts (Bowers v. Hard-wick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 [1986]). This case was over-ruled by lawrence v. texas, 539 U.S. ___, 123 S. Ct. 2472, ___L. Ed. 2d ___ (2003); the Supreme Court overruled its prior decision in Bowers v. Hardwick and held that a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct was unconstitutional, as applied to adult males who had engaged in consensual act of sodomy in the privacy of home.

Another argument often raised with moral tradition is that heterosexual marriage is based on the need to procreate, something that same-sex couples cannot do. Proponents of same-sex marriage point out that heterosexual couples who cannot procreate are not denied a marriage license. Elderly, disabled, and infertile individuals may choose to marry for reasons other than procreation. In addition, both heterosexual and homosexual couples have taken advantage of advances in technologies such as artificial insemination and in vitro fertilization to overcome physical limitations on procreation. Critics of the moral tradition argument contend that it is based on misguided readings of the Bible and history. They note that many religious leaders support same-sex marriage and that many same-sex couples solemnize their relationship in a religious ceremony performed by a minister or rabbi.

The pragmatism argument against same-sex marriage is typically made by those who support gay and lesbian rights generally but stop short of endorsing same-sex marriage. The call for marriage, they maintain, will create a backlash against the entire gay and lesbian rights movement. In addition, permitting same-sex marriage would be interpreted as legitimizing homosexuality. The pragmatic position is that gays and lesbians should be tolerated and protected; it does not extend to support the recognition of an alternative lifestyle or the expansion of the traditional concept of marriage.

Along with homosexual opponents who advance these arguments, some gays and lesbians are less than enthused with the prospect of same-sex marriage. This group believes that heterosexual marriage is not a good model for gays and lesbians, as it has traditionally established a hierarchical relationship that has produced the subordination of women. The structure of marriage has fostered domestic abuse, economic disempowerment, and other forms of social dysfunction.

Another argument against same-sex marriage is that it will assimilate gays and lesbians into the dominant culture and drain off the radicalism implicit in the gay and lesbian lifestyle. In lobbying for same-sex marriage, gay and lesbian leaders will put forward couples who most resemble their mainstream, heterosexual counterparts. This argument has been met with skepticism as romanticizing the movement. All gays and lesbians cannot be grouped as radicals, and it is to be expected that many gays and lesbians would enjoy the legal protection that same-sex marriage would bring.

When the debate has moved into the legal arena, reaction has been strong and swift. In the 1990s, proponents of same-sex marriage scored victories after courts ruled against state bans on such marriages in both Hawaii in 1993 (Baehr v. Lewin, 852 P. 2d 44 [Hawaii 1993]) and Alaska in 1998 (Brause v. Bureau of Vital Statistics, 21 P. 3d 357 [2001]). In both states, a backlash ensued. Hawaiian voters ratified a state constitutional amendment authorizing lawmakers to define marriage only as a union between a man and a woman. Similarly, Alaskans voted by a 2–1 margin in favor of a similar amendment, while proposals were also floated for subjecting judicial nominees to a legislative vetting process that would weed out those sympathetic to same-sex marriages.

Politicians are responsive to such public sentiment. In Congress and state legislatures, same-sex marriage has been vigorously opposed, and by the late 1990s both federal lawmakers and many state legislatures had adopted outright bans. In 1996, Congress passed the Defense of Marriage Act (DOMA) to give states the right to refuse to recognize same-sex marriages performed in other states. DOMA offered a strong rebuke to proponents by creating the first explicit federal definitions of "marriage" and "spouse" in strictly heterosexual terms, and its very name implied that the institution of marriage needed protection from them.

Despite arguably no movement nationally toward broader acceptance of same-sex marriages, gays and lesbians have enjoyed some related legal gains in the early 2000s. More municipalities, including New York City, extended insurance and health benefits to domestic partners. Following this trend in 2000, Vermont legislators passed a historic civil union law conferring on gays and lesbian partners a status similar to marriage. Although stopping short of legitimizing same-sex marriages, the civil union law cleared the way for partners to secure statewide benefits.

Perhaps unavoidably, the debate over same-sex marriage becomes heated because of the fundamental issues at stake. Proponents see marriage as socially constructed and therefore open to changes that society wishes to make. Opponents see less flexibility, citing tradition, morality, and the integrity of the family.

further readings

Ferdinand, Pamela. 2002. "For Gay Couples, Civil Unions Tougher to Undo than Create." Washington Post (November 28).

Sullivan, Andrew, ed. 1997. Same-Sex Marriage, Pro and Con. New York: Vintage Books.

Wardle, Lynn D., et al, eds. 2003. Marriage and Same-Sex Unions: A Debate. Westport, Conn.: Praeger.


Civil Rights; Marriage; Privacy.

In 1993, voters in Cincinnati, Ohio, passed an initiative amending its city charter to prohibit the city from adopting or enforcing any ordinance, regulation, rule, or policy that entitled gays, lesbians, or bisexuals the right to claim minority or protected status. Gay and lesbian groups challenged the constitutionality of the amendment in federal court, arguing that it denied them equal protection of the law.

In Equality Foundation of Greater Cincinnati v. Cincinnati, 860 F. Supp. 417 (S.D. Ohio 1994), the U.S. District Court for the Southern District of Ohio granted the plaintiffs a permanent injunction that precluded the charter amendment from going into effect. The District Court's decision was overturned on appeal in Equality Foundation of Greater Cincinnati v. City of Cincinnati, 128 F.3d 289 (6th Cir. 1997). The Sixth Circuit Court of Appeals said that Cincinnati's charter amendment was different from Colorado's Amendment 2 because the charter amendment did not deprive gays and lesbians of all legal redress in the entire state.

The Sixth Circuit found that the charter amendment's scope was limited to the confines of the city and that homosexuals' fundamental right to participate in the state's political process was not affected by the local law. Thus, the court concluded that the charter amendment was rationally related to the city's valid interest in conserving public costs that are incurred from investigating and adjudicating sexual orientation discrimination complaints. The Supreme Court surprised many legal observers when it denied certiorari to consider the Sixth Circuit's decision. Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 525 U.S. 943, 119 S. Ct. 365, 142 L. Ed. 2d 302 (1998).

Anti-gay discrimination state legislation has often been met with opposition. In 1998, voters in the state of Maine repealed the state's gay rights law by a narrow margin, marking the first time that a state has repealed a gay rights law. The law, which never went into effect, was repealed by a "people's veto" referendum that was initiated by a petition campaign.

The repeal thwarted a 20-year effort by Maine's Lesbian-Gay Political Alliance to secure civil rights protections. In May 1997, the Maine legislature passed the amendment to the Maine Human Rights Act, 5 Me. Rev. Stat. Ann. § 4552 (West Supp. 2003). The amendment banned discrimination in housing, employment, public accommodations, and credit based on sexual orientation. Governor Angus King, a strong supporter of the legislation, signed the bill into law that May.

The new law aroused immediate opposition. A conservative group led by members of the Christian Civil League of Maine and the state chapter of the christian coalition organized volunteers to collect signatures on petitions calling for a state referendum on the law. In February 1998, voters chose to overturn the law by a 51 to 49 percent margin.

Other state legislation survived both court challenges and political sparring. In 2000, the Vermont legislature passed a law allowing homosexuals the legal benefit of marriage by entering into civil unions. Shortly before the law became effective that year, a group of plaintiffs filed a lawsuit to have it overturned.

The Vermont legislation stemmed from a decision in the Vermont Supreme Court, Baker v. Vermont, 744 A.2d 864 (Vt. 1999), in which the court held that preventing homosexual couples from getting the public benefits that flow from marriage violates the Common Benefits Clause of the Vermont Constitution. The provision states," That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community."

Following the decision, the legislature responded by passing An Act Relating to Civil Unions, Vt. Stat. Ann., title 18, §§ 5160–5169 (2001), which requires town clerks to issue civil union licenses to homosexual couples who complete a form and satisfy other requirements. These couples must then have the union certified by a member of the clergy or a justice of the peace. Dissolving a civil union requires family court proceedings similar to those for a divorce. Several plaintiffs, including town clerks required to issue licenses under the new law, brought suit to challenge the legislation. However, a lower court dismissed the lawsuit, and the Vermont Supreme Court affirmed the dismissal.

Other plaintiffs have sought, though ultimately unsuccessfully, to challenge discrimination under a variety of state laws. Policies of the Boy Scouts of America, an organization that refuses to admit homosexuals, have been the subject of several of these lawsuits. In 1998, the California Supreme Court ruled that the state's human rights act did not apply to the Boy Scouts because the organization was not a business establishment. Curran v. Mount Diablo Council of the Boy Scouts of America, 952 P.2d 218 (Cal. 1998).

The plaintiff in the case, Timothy Curran, was a Boy Scout from 1975 to 1979, when he was 14 to 18 years of age. He had a distinguished scout career, attaining the rank of Eagle Scout and earning numerous honors. After he had left the organization upon turning 18, he appeared in a series of articles in an Oakland newspaper about gay teenagers. When he later applied to become an assistant scoutmaster, scout officials denied his application due to his homosexual lifestyle. He first filed suit in 1982, but the original trial did not take place until 1990. Both the trial court and a California court of appeals held, similar to the later ruling by the California Supreme Court, that because the Boy Scouts was not a business establishment, the human rights law did not apply to them.

The California Supreme Court's decision was the opposite of decisions by courts in New Jersey. James Dale had been involved in the Boy Scouts from the age of eight. Like Timothy Curran, Dale was an exemplary member, earning the rank of Eagle Scout. Dale was later approved for adult membership. However, while he attended Rutgers University, he became the co-president of the university gay and lesbian campus organization and appeared in an article where he admitted to being a homosexual. The Boy Scouts then revoked his membership based on his homosexuality.

The New Jersey Superior Court's Appellate Division, in Dale v. Boy Scouts of America, 706 A.2d 270 (N.J. Super. 1998), determined that the Boy Scouts' policy violated the state's public accommodation law under New Jersey's Law Against Discrimination, N.J. Stat. Ann. § 10:5-1 et seq. The case was eventually appealed to the New Jersey Supreme Court, which agreed with the superior court's decision. Dale v. Boy Scouts of America, 734 A.2d 1196 (N.J. 1999). These decisions were initially considered major victories for gay and lesbian rights supporters.

However, the U.S. Supreme Court reversed the decisions of the New Jersey courts in boy scouts of america v. dale, 530 U.S. 640, 120 S. Ct. 2446, 147 L. Ed. 2d 554 (2000). The Court, in a 5 to 4 decision, held that forcing the organization to accept gay troop leaders violates the Boy Scouts' right of free expression and free association under the first amendment.

Prior decisions by the Court had reached similar holdings. In Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557, 115 S. Ct. 2338, 132 L. Ed. 2d 487 (1995), the Court ruled that the sponsor of Boston's St. Patrick's Day parade could not be forced to allow a group of gays and lesbians to participate. The Court held that parades are a form of expression and that the sponsors could not be forced to include "a group imparting a message the organizers do not wish to convey."

In Dale, the Court, per Chief Justice william h. rehnquist, found that the Boy Scouts similarly engage in expressive activity. More specifically, the Court recognized that the Boy Scout oath and creed, which include provisions admonishing scouts to be "morally straight" and "clean," were the types of expressive conduct protected by the First Amendment. The Boy Scouts in the case proclaimed that the organization did not wish to admit homosexuals because it did not want to "promote homosexual conduct as a legitimate form of behavior." Because the Boy Scouts could not be forced to convey a message contrary to one they did not want to convey, they could not be forced to allow homosexuals to become members.

Gay and lesbian rights groups, who decried the decision in Dale, have continued to strive for equality. These groups have sought to put pressure on such organizations as the Boy Scouts of America. For example, the Broward County School Board in Florida voted to ban the Boy Scouts from each of the 215 schools in the district due to the organization's discriminatory policies regarding homosexuals. In another form of protest, some Eagle Scouts, both gay and straight, returned their Eagle badges to the Boy Scouts' headquarters.

Because gay and lesbian rights advocates have had only limited success in the courts, state legislatures and local governmental entities have sought to achieve these rights by changing society's perceptions of homosexuality in general. The United States nevertheless remains fractioned in the debate, as many conservative groups strongly oppose recognition of homosexuality as a civil right. The nation will likely continue to hear both sides of this debate, and the U.S. legal system is likely to see many more legal challenges involving gay and lesbian rights.

further readings

Eskridge, William N., Jr. 1993. "A History of Same-Sex Marriage." Virginia Law Review 79.

Friedman, Lawrence M. 1993. Crime and Punishment in American History. New York: Basic Books.

Gearan, Anne. 2003. "Gay Rights May Be Next Big Battle, O'Connor Says." Chicago Daily Law Bulletin (May 2).


Child Custody; Ettelbrick, Paula Louise.