Obergefell et al v. Kasich et al

Filing 42

NOTICE by Plaintiffs John Arthur, Robert Grunn, David Brian Michener, James Obergefell of Filing Expert Report of George Chauncey (Attachments: # 1 Expert Declaration, # 2 Exhibit Exhibit A, Chauncey CV, # 3 Exhibit Exhibit B, Chauncey Bibliography) (Martin, Jacklyn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JAMES OBERGEFELL, et al.
Plaintiffs,
v.
THEODORE E. WYMYSLO, et. al.,
Defendants.

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Civil Action No. 1:13-cv-501
Judge Timothy S. Black

EXPERT DECLARATION OF
GEORGE CHAUNCEY IN SUPPORT
OF PLAINTIFFS’ MOTION FOR
DECLRATORY JUDGMENT AND
PERMENANT INJUNCTION

I, George Chauncey, hereby declare and state as follows:
Expert Background and Qualifications
1.
I am the Samuel Knight Professor of History and American Studies and past
Chair of the Department of History at Yale University, where I have taught since 2006. My
testimony will relate to my opinions as an expert in the history of the United States in the
twentieth century and gender, homosexuality, sexuality, and civil rights in the United States,
with a particular focus on the history of discrimination experienced by gay men and lesbians in
the United States. I have actual knowledge of the matters stated in this declaration, and could
and would so testify if called as a witness.
2.
My background, experience, and publications are summarized in my curriculum
vitae, which is attached as Exhibit A to this declaration. In the past four years, I have testified as
an expert—either at trial or through declaration—or been deposed as an expert in Darby et al. v.
Orr, Nos. 12-CH-19718 and 12-CH-19719 (Cir. Ct. Cook County, Ill.); Perry v.
Schwarzenegger, 704 F.Supp.2d 921 (N.D. Cal. 2010), Gill v. Office of Pers. Mgmt., No. 0910309 (D. Mass.), Commonwealth of Mass. v. U.S. Dep’t of Health and Human Servs., No. 0911156 (D. Mass.), Windsor v. U.S., 833 F.Supp.2d 394 (S.D.N.Y. 2011), Pedersen v. Office of
Personnel Management, 2012 WL 3113883 (D. Conn.), Golinski v. Office of Personnel
Management, 824 F.Supp.2d 968 (N.D. Cal. 2012), Dragovich v. U.S. Dep’t of the Treasury,
2012 WL 1909603 (N.D. Cal. 2012), Donaldson v. Montana, No. 10-702 (Mont. 1st Jud. Dist.
Ct.), Jackson v. Abercrombie, 2012 WL 3255201 (D. Haw. 2012); Cooper-Harris v. United
States, No. CV 12 0887 (C.D. Cal.); and Sevcik v. Sandoval, No. 2:12-CV-00578-RCJ-PAL (D.
Nev)—all of which involved testimony on topics similar to those discussed below. Although it
is more than four years ago, I also testified in Equal. Found. of Greater Cincinnati, Inc. v. City of
Cincinnati, 838 F. Supp. 1235 (S.D. Ohio 1993) rev'd and vacated, 54 F.3d 261 (6th Cir. 1995)
cert. granted, judgment vacated, 518 U.S. 1001 (1996).
3.
From 1991 to 2006, I was a Professor of History at the University of Chicago. I
am the author of Gay New York: Gender, Urban Culture, and the Making of the Gay Male
1

World, 1890-1940 (New York: Basic Books, 1994), which won the Organization of American
Historians’ Merle Curti Award for the best book in social history and Frederick Jackson Turner
Award for the best first book in any field of history, the Los Angeles Times Book Prize in
History, and Lambda Literary Award. I am also the author of Why Marriage? The History
Shaping Today’s Debate over Gay Equality (New York: Basic Books, 2004); coeditor of three
books and special journal issues, including Hidden From History: Reclaiming the Gay and
Lesbian Past (NAL, 1989); and the author of numerous articles, which are listed in my
curriculum vitae, attached to this declaration as Exhibit A.
4.
In preparing this Declaration, I reviewed the Complaint in this case. I base my
opinions on my own research, experience and publications, the work of other historians and
scholars as listed in the attached bibliography (Exhibit B), and the general statutes of a number
of states, including Illinois, New York, Connecticut, Vermont, and New Hampshire.
5.
I have been retained by counsel for Plaintiffs in this litigation. I am being
compensated at a rate of $400 per hour for preparation of reports or declarations; $450 per hour
for time spent preparing for and giving deposition or trial testimony; and $4,500 per day spent
preparing for or attending trial. My compensation does not depend on the outcome of this
litigation, the opinions I express, or the testimony I provide.
Summary of Opinions
6.
It is my professional opinion that the historical record, which is outlined below,
demonstrates that gay and lesbian people have been subject to widespread and significant
discrimination and hostility in the United States.
7.
Through much of the twentieth century, in particular, gay men and lesbians
suffered under the weight of medical theories that treated their desires as a disorder; penal laws
that condemned their consensual adult sexual behavior as a crime; police practices that
suppressed their ability to associate and socialize publicly; censorship codes that prohibited their
depiction on the stage, in the movies, and on television; and federal policies and state regulations
that discriminated against them on the basis of their homosexual status. These state policies and
ideological messages worked together to create and reinforce the belief that gay and lesbian
persons comprised an inferior class to be shunned by other Americans.
8.
Despite social and legal progress in the past thirty years towards greater
acceptance of homosexuality, gay and lesbian people continue to live with the legacy of the antigay measures enacted in the 1930s, 1940s, and 1950s and the attitudes that motivated those
measures. That legacy is evident both in laws that remain on the books and in the many legal
protections that have not been enacted.
9.
Among the many products of the legacy of discrimination in the twentieth
century, the most conspicuous today include Congress’ repeated failure to enact or even
seriously consider federal legislative protections for gay and lesbian people in housing,
employment, and public accommodations; the numerous state statutes and constitutional
amendments that brand gay men and lesbians as second-class citizens by denying them the right
to marry the person they love; and the former federal Defense of Marriage Act, which until a few
2

months ago prohibited the federal government from recognizing such a marriage when it did
occur. The legacy of discrimination is also evident in the demeaning stereotypes and
inflammatory rhetoric used by anti-gay organizations and public officials as they campaign to
enact further measures meant to erode gay people’s civil rights and diminish their status as full
citizens of the United States—campaigns that are, to this day, very often successful.
10.
Today, the limited civil rights enjoyed by gay and lesbian Americans vary
substantially from region to region and are still subject to the vicissitudes of public opinion.
Like other minority groups, gay men and lesbians often must rely on judicial decisions to secure
equal rights.
History of Discrimination Against Gay and Lesbian People in the United States
I.

Introduction

11.
While there is ample evidence that same-sex attraction, love, and intimacy have
persisted across the ages, most historians now agree that the concept of the homosexual and the
heterosexual as distinct categories of people emerged only in the late nineteenth century. This
concept had profound effects on the regulation of homosexuality. Early American legislators,
drawing on their understanding of ancient Judeo-Christian prohibitions against sodomy and
“unnatural acts,” penalized a wide range of non-procreative behavior, including many forms of
what would now be called homosexual conduct. While these laws prohibited conduct, it was in
the twentieth century that governments began to classify and discriminate against certain of their
own citizens on the basis of their status or identity as homosexuals.
12.
Official, government-sanctioned hostility and discrimination has had a profound
and enduring negative impact on lesbians and gay men in American society. In the 1920s, the
State of New York prohibited theaters from staging plays with lesbian or gay characters.
Beginning in the 1930s and 1940s, many states prohibited gay people from being served in bars
and restaurants. In the 1950s, the federal government banned the employment of homosexuals
and insisted that its private contractors ferret out and dismiss their gay employees. It also
prohibited gay foreigners from entering the country or securing citizenship. Until the 1960s, all
states penalized sexual intimacy between men. Throughout the twentieth century, many
municipalities launched police campaigns to suppress gay meeting places, and sought to purge
gay civil servants from government employment.
13.
Private hostility and discrimination, often encouraged by government officials,
has had a similarly profound and enduring negative effect on lesbians and gay men in American
society. Until the 1970s, leading physicians and medical researchers claimed that homosexuality
was a pathological condition or disease. In the 1930s, the Hollywood studios enacted a
censorship code that for nearly thirty years prohibited the discussion of gay issues or the
appearance of gay or lesbian characters in the era’s most powerful communications medium. In
the 1940s and 1950s, municipal police officials, state governmental leaders, local newspapers,
and national magazines justified anti-gay discrimination and the suppression of gay meeting
places by fostering frightening stereotypes of homosexuals as child molesters. These stereotypes
have had enduring consequences, and continue to inspire public fears and hostility, especially
concerning gay teachers and parents. In the 1980s, the early press coverage of AIDS reinforced
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the view that homosexuals were diseased and threatened other Americans. In the 1990s, many
clergy condemned (and still condemn) homosexuality as sinful. The Southern Baptist
Convention, for example, called for a boycott of all Disney products because Disney offered
domestic partnership benefits to its employees and Disneyland organized gay theme nights.
Also, some anti-gay groups threatened to organize boycotts against the sponsors of network
television shows which included gay characters.
14.
Historically, anti-gay measures often were enacted or strengthened in response to
periods of relative growth in the visibility or tolerance of gay people. For example, the
effervescence and visibility of gay life in the 1920s contributed to the backlash gay and lesbian
people endured during the Great Depression. The increased visibility of gay men and lesbians
during the Second World War helped precipitate a second wave of hostility in the late 1940s and
1950s. The dramatically increased visibility of gay people in the 1970s and 1980s, and their
success in persuading some state and local governments to include sexual orientation in their
anti-discrimination laws, resulted in a wave of referenda and initiatives between 1977 and the
early 1990s that overturned such laws and/or prohibited the enactment of others.
15.
In recent decades, and especially in the last twenty years, many (though not all) of
these discriminatory measures were repealed, but considerable discrimination and animosity
persisted. Given the long history of campaigns demonizing homosexuals as child molesters, it is
unsurprising that in 1977—the year Anita Bryant launched her “Save Our Children” campaign—
two-thirds of Americans told pollsters they objected to lesbians or gay men being hired as
elementary school teachers. By 1992, after fifteen years of extensive public discussion of this
and other gay issues, opinion had shifted, but half of those parents polled still rejected the idea of
their child having a gay elementary school teacher. By 2002, about forty percent of Americans
still were unwilling to have elementary schools employ gay teachers, and one-third of them
found gay high school teachers unacceptable.
16.
When marriage emerged as the new flashpoint in debates over civil rights for gay
men and lesbians almost two decades ago, the debate was shaped by the legacy of anti-gay
policies and attitudes. Many Americans initially responded to the idea that gay and lesbian
couples should be allowed to marry with the same misgivings and even hostility with which they
once greeted the idea of gay teachers or gay characters on television sitcoms. Opponents of
marriage equality mobilized some of the most enduring anti-gay stereotypes to heighten public
apprehension. For instance, during the 2008 campaign over Proposition 8—the California ballot
initiative that revoked the marriage rights of gay men and lesbians that the California Supreme
Court had recognized under the state constitution—several television commercials aired by the
supporters of Proposition 8 warned that marriage equality might encourage children to become
homosexuals themselves. The recent campaign to repeal marriage equality in Maine used the
same tactics, including recycling commercials and scripts from the Proposition 8 campaign
because they had been so effective in California. Likewise, material from the Nevada campaign
to amend the state constitution to bar marriage for same-sex couples stated “Let’s not experiment
with Nevada’s children.” The approval of Proposition 8 in California, Question 1 in Maine,
Question 2 in Nevada, and similar laws and constitutional amendments in a total of forty-one
states, including Ohio’s constitutional amendment, which was passed by the voters in 2004,
indicates the enduring influence of anti-gay hostility and the persistence of ideas about the
inequality of gay people and their relationships. The civil rights enjoyed by gay and lesbian
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people throughout the United States continue to be subject to the vicissitudes of public opinion in
an ever-changing social, political, and cultural landscape.
17.
At several critical junctures, a handful of state and federal courts have been the
only authorities willing to defend the rights of gay people against the antipathy of the majority.
In the 1950s and 1960s, at a time when overwhelming public sentiment supported the
criminalization of gay bars and other meeting places, state courts in California and New York
ruled that gay people had the right to assemble. In 1954, the United States Supreme Court ruled
that the United States Post Office could not ban a gay political magazine from the mails. In the
1990s, when voters in cities and states across the country were voting to ban states and local
municipalities from enacting anti-discrimination protections for gay people, the Supreme Court,
in Romer v. Evans, struck down a Colorado constitutional amendment that withdrew from gay
men, lesbians, and bisexuals, but no others, specific legal protection from discrimination.
Sometimes quickly and sometimes more slowly, these decisions played a critical role in shifts in
public opinion.
II.

The Roots of Anti-Gay Discrimination

18.
The first American laws against homosexual conduct were rooted in the earliest
English settlers’ understanding of the religious and secular traditions that prohibited sodomy, and
they reflected the ambiguity of those traditions. Although sodomy included some forms of what
today would be called homosexual conduct, medieval theologians did not use sodomy to refer
systematically and exclusively to such conduct; for example, they rarely understood sodomy to
include oral sex or sex between women.
19.
The English Reformation Parliament of 1533 turned the religious injunction
against sodomy into the secular crime of buggery when it made “the detestable and abominable
vice of buggery committed with mankind or beast” punishable by death. The English courts
interpreted this to apply to sexual intercourse between a human and an animal and anal
intercourse between a man and woman or between two men.
20.
Colonial American statutes drew on these religious and secular traditions and
shared their imprecision in the definition of the offense. Variously defining the crime as (the
religious) sodomy or (the secular) buggery, they generally proscribed anal sex between men and
men, men and women, and humans and animals, but their details and their rationales varied. The
southern colonies generally adopted the English law against buggery, while the Puritan New
England colonies usually drew on religious traditions to penalize many forms of “carnall
knowledge,” including adultery, fornication, sex with prepubescent girls, and “men lying with
men.”
Puritan clergy in the New England colonies were especially vigorous in their
denunciation of sodomitical sins as contrary to God’s will, but their condemnation was motivated
by the pressing need to increase the population and to secure the stability of the family, as well
as their reading of scripture. In the Massachusetts Bay Colony, sodomy was prohibited in 1641
by a statute taken directly from Leviticus: “If any man lyeth with mankinde as he lyeth with a
woeman, both of them have committed abhomination, they both shall surely be put to death.”
Although several men were executed for sodomy, the colonies rarely prosecuted men for this
offense, for reasons that still are not entirely clear to historians.

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III.

Modern American History: 1890-1940

21.
Prosecutions for sodomy and related offenses increased dramatically in the late
nineteenth and early twentieth centuries as a result of the emergence of the idea of the
homosexual as a distinct category of person, the expansion of laws penalizing homosexual
conduct, and the growing influence of religiously-inspired moral reform societies that insisted on
criminal prosecutions. In 1914, for example, the Supreme Court of Nevada held that the state’s
statute criminalizing “infamous crimes against nature” encompassed oral as well as anal
intercourse, each being an “‘abominable crime not fit to be named among Christians.’” In re
Benites, 37 Nev. 145, 149 (1914).
22.
These types of prosecutions continued to penalize people on the basis of their
homosexual conduct rather than their identity as homosexuals. Current historical research
suggests that the concept of the homosexual as a distinct category of person developed as
recently as the late nineteenth century. The word “homosexual” appeared for the first time in a
German pamphlet in 1868, and was introduced to the American lexicon only in 1892. Between
the 1920s and 1950s, the government, drawing on long traditions of hostility to same-sex
conduct and responding both to new conceptions of the homosexual as an individual and to the
growing visibility of those individuals, began to classify and discriminate against certain of its
citizens on the basis of their status or identity as homosexuals. This discrimination reached
remarkable, and still largely unrecognized, proportions.
23.
The dramatic growth of American cities in the late nineteenth century permitted
lesbians and gay men to develop a more complex and extensive collective life than was possible
in small towns and rural areas. While everyone was likely to know everyone else’s business in
small towns, the size, complexity, and relative anonymity of cities made it easier for gay people
(and other nonconformists) to forge a collective life with people like themselves, away from the
eyes of hostile outsiders. The early history of the migration of gay people to the relative freedom
of the cities is little understood, but it seems to have increased in the early twentieth century, at
about the same time as growing numbers of African Americans fled the small towns of the Jim
Crow South for the relative freedom of northern cities. Like African Americans, gay people,
both black and white, found that the relative freedom of city life was tempered by continuing
hostility and discrimination.
24.
The emergence of gay and lesbian communities described in this Declaration took
place in varying degrees in every American city studied by historians. Because the field of
lesbian and gay history remains relatively young in 2013 and has been hampered by the legacy of
censorship described below, historians still know most about the history of such communities in
major metropolitan centers such as New York, San Francisco, Los Angeles, and Chicago, and
they will therefore loom large in the history that follows. However, recent studies of the gay
history of smaller cities and communities, ranging from Buffalo, New York, and Portland,
Oregon, to Jackson, Mississippi, and its surrounding rural areas, both confirm the broad outlines
of the history described here and reveal regional variations in that history. Important recent
historical studies of the development of federal and military policies concerning homosexuality
and gay citizens have documented discriminatory laws and policies that had nationwide effects.

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25.
New York City provides one of the best documented examples of the emergence
of a distinctive gay world in the early twentieth century. By the 1910s, New York’s “gay world”
included gay residential and commercial enclaves in several immigrant, African American, and
bohemian neighborhoods; widely publicized dances and other social events; and a host of
commercial establishments where gay people gathered, ranging from saloons, speakeasies, and
bars to cheap cafeterias and elegant restaurants. In the 1920s and early 1930s, gay writers and
performers produced a flurry of gay literature and theater. Some gay people were involved in
long-term relationships they called marriages. Most remained very careful to conceal their
homosexuality from non-gay associates, though, for fear of losing their jobs, homes, and respect.
26.
Many Americans responded to the growing visibility of gay life with fascination
and sympathy, regarding it as simply one more sign of the growing complexity and freedom
from tradition of a burgeoning metropolitan culture. Popular fascination with gay culture
reached a crescendo during the Prohibition Era (or Jazz Age), when lesbians ran some of the
most popular tearooms and cafes in bohemian neighborhoods such as New York’s Greenwich
Village and Chicago’s Towertown. That said, the poor, immigrant, African American, and
bohemian neighborhoods where gay life became most visible were regarded as the underside of
city life by “respectable society.”
A.

Hostile Religious and Medical Views Prompted the Escalation of Anti-Gay
Policing in the Early Twentieth Century

27.
Other Americans regarded the growing visibility of lesbian and gay life with
dread. Hostility to homosexuals sometimes was motivated by an underlying uneasiness about
the dramatic changes underway in gender roles at the turn of the last century. In this era—indeed
until 1973—homosexuality was classified as a disease, defect, or disorder. Conservative
physicians initially argued that the homosexual (or “sexual invert”) was characterized as much
by his or her violation of conventional gender roles as by specifically sexual interests. At a time
when many doctors argued that women should be barred from most jobs because employment
would interfere with their ability to bear children, numerous doctors identified suffragists,
women entering the professions, and other women challenging the limits placed on their sex as
victims of a medical disorder. Thus, doctors explained that “the female possessed of masculine
ideas of independence” was a “degenerate” and that “a decided taste and tolerance for cigars, * *
* [the] dislike and incapacity for needlework * * * and some capacity for athletics” were all
signs of female “sexual inversion.” Similarly, another doctor thought it significant that a male
“pervert” “never smoked and never married; [and] was entirely averse to outdoor games.”
28.
Such views about gender roles lost their credibility once public opinion had come
to accept significant changes in women’s roles in the workplace and political sphere, but doctors
continued for several more decades to identify homosexuality per se as a “disease,” “mental
defect,” “disorder,” or “degeneration.” For generations, such hostile medical pronouncements
provided a powerful source of legitimation to anti-homosexual sentiment, just as medical science
previously had legitimized widely held (and subsequently discarded) beliefs about male
superiority and white racial superiority.
The medical profession’s classification of
homosexuality as a defect or disorder also helped spur and legitimate anti-gay law enforcement
activity throughout the country.

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29.
Religiously-inspired hostility to homosexuality also inspired an escalation in antigay policing. In the late nineteenth century, native-born Protestants organized numerous “antivice” societies to suppress what they regarded as the sexual immorality and social disorder of the
nation’s burgeoning Catholic and Jewish immigrant neighborhoods.
Although these
organizations focused on female prostitution and what they regarded as the weakening of moral
strictures governing relations between men and women, they also opposed the growing visibility
of homosexuality, which they regarded as a particularly egregious sign of the loosening of social
controls on sexual expression under urban conditions. They encouraged the police to step up
harassment of gay life as one more part of their campaigns to shut down dance halls and movie
theaters, prohibit the consumption of alcohol and the use of contraceptives, dissuade restaurants
from serving an interracial mix of customers, and otherwise impose their vision of the proper
social order and sexual morality. In New York City in the 1910s and 1920s, for instance, the
Society for the Suppression of Vice (also known as the Comstock Society) worked closely with
the police to arrest several hundred men for homosexual conduct. In Massachusetts, the Watch
and Ward Society, established as the New England Society for the Suppression of Vice,
conducted surveillance on virtually all the popular gay bars and gathering places of the time. In
Chicago, the 1910 Vice Commission investigated the city’s homosexual “resorts.”
30.
As a result of the pressure from Protestant moral reform organizations, municipal
police forces began using misdemeanor charges, such as disorderly conduct, vagrancy, lewdness,
loitering, and so forth to harass homosexuals. These state misdemeanor or municipal offense
laws, which carried fewer procedural protections than felony sodomy charges, allowed further
harassment of individuals engaged in same-sex intimacy. In some cases, state officials tailored
these laws to strengthen the legal regulation of homosexuals. For example, in 1923, the New
York State legislature specified for the first time that a man’s “frequent[ing] or loiter[ing] about
any public place soliciting men for the purpose of committing a crime against nature or other
lewdness” was a form of disorderly conduct. Many more men were arrested and prosecuted
under this misdemeanor charge than for sodomy. Between 1923 and 1966, when Mayor John
Lindsay ordered the police to stop using entrapment to secure arrests of gay men, there were
more than 50,000 arrests on this charge in New York City alone.
31.
The social marginalization of gay men and lesbians gave both the police and the
public even broader informal authority to harass them. The threat of violence and verbal
harassment deterred many gay people from doing anything that might reveal their homosexuality
in public. Gay people knew that anyone discovered to be homosexual risked the loss of
livelihood and social respect, so most gay people were careful to lead a double life, hiding their
homosexuality from their heterosexual employers and other associates.
B.

Censorship

32.
The growing visibility of lesbian and gay life in the early twentieth century
precipitated censorship campaigns designed to curtail gay people’s freedom of speech and the
freedom of all Americans to discuss gay issues.
33.
The earliest gay activists fell victim to such campaigns. In 1924, when the
Chicago police learned that a postal worker had established the country’s earliest known gay
political group, the Society for Human Rights, they raided his home and seized his group’s files.
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After the raid, the group ceased publication of its short-lived magazine, Friendship and
Freedom. In the 1910s and 1920s, a handful of plays included lesbian and gay characters or
addressed gay themes. But in 1927, after “The Captive,” a serious drama exploring lesbianism,
opened on Broadway to critical acclaim, New York State passed a “padlock law” that threatened
to shut down for a year any theater that staged a play with lesbian or gay characters. Given
Broadway’s national importance as a staging ground for new plays, this law effectively censored
American theater for a generation.
34.
Theater censorship occurred in other cities in addition to New York. In the early
twentieth century, Boston had a particularly strict culture of “moral purity” censorship, and the
phrase “Banned in Boston” was familiar to people throughout the country. In 1935, for instance,
Boston Mayor Frederick W. Mansfield banned Lillian Hellman’s “The Children’s Hour,” a play
with lesbian themes. Mansfield explained his decision to the press by asserting that the play
“showed moral perversion, the unnatural appetite of two women for each other.”
35.
Such censorship had even wider-reaching effects when it spread to the movies.
A censorship movement led by religious leaders threatened the Hollywood studios with mass
boycotts and restrictive federal legislation if they did not begin censoring their films. Seeking to
avoid federal legislation, the studios established a production code (popularly known as “the
Hays Code”) that from 1934 on prohibited the inclusion of gay or lesbian characters, discussion
of homosexual issues, or even the “inference” of “sex perversion” in Hollywood films. This
censorship code remained in effect for some thirty years and effectively prohibited discussion of
homosexuality in a powerful communications medium. This censorship stymied and delayed
democratic debate about homosexuality for more than a generation.
C.

The Great Depression and the Curtailment of Gay People’s Freedom of
Association

36.
In the early years of the Great Depression, restrictions on gay life intensified. By
depriving millions of men of their role as breadwinners, the Depression transformed alreadyexisting anxiety over gender roles into a crisis in gender and family relations. Federal, state, and
local governments responded to this perceived crisis with policies that directly affected women
and gay people. New Deal public works projects, for instance, which offered jobs only to male
heads of households, were designed in part to restore men’s status in their families and larger
society, even when this meant limiting women’s economic opportunities.
37.
The apparent fragility of the family and gender arrangements made the visibility
of gay life seem more threatening to many people, especially given the long-standing
representation of gay men and lesbians as gender deviants. After a generation in which gay life
had been relatively visible and integrated into urban public life, restrictions on gay life increased.
Gay people were forced into hiding by new laws that pushed gay people out of restaurants and
bars, as well as off the stage and silver screen.
38.
New regulations curtailed gay people’s freedom of association. In New York
State, for instance, the State Liquor Authority, established after the repeal of Prohibition in 1933,
issued regulations prohibiting bars, restaurants, cabarets, and other establishments with liquor
licenses from employing or serving homosexuals or even allowing them to congregate on their
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premises. The Authority’s rationale was that the mere presence of homosexuals made an
establishment “disorderly,” and when the courts rejected that argument, the Authority began
using evidence of unconventional gender behavior or homosexual solicitation gathered by
plainclothes investigators to provide proof of a bar’s disorderly character. Hundreds of bars
were closed for this reason in the next thirty years in New York City alone.
39.
Similar regulations were introduced around the country in subsequent years. In
California in the 1950s, notes historian Nan Alamilla Boyd, the Alcoholic Beverage Control
Board “collapsed the difference between homosexual status (a state of being) and conduct
(behavior) and suggested that any behavior that signified homosexual status could be construed
as an illegal act. Simple acts such as random touching, mannish attire (in the case of lesbians),
limp wrists, high-pitched voices, and/or tight clothing (in the case of gay men) became evidence
of a bar’s dubious character” and grounds for closing it. In Chicago in 1934-35, Mayor Edward
J. Kelly used laws against bawdiness and cross-dressing to shut down almost all the cabarets on
the Near North side featuring lesbians, “pansies,” or male or female impersonators, on stage or in
the audience.
IV.

Modern American History: World War II

40.
Changes in the policies of the Armed Forces of the United States during the
Second World War both reflected and expanded the government’s growing campaign of
classifying and discriminating against gay citizens. The military had long made sodomy a
criminal offense (and, indeed, it continues to do so). But the Second World War marked the first
time the military moved beyond criminalizing homosexual conduct to develop policies that
systematically endeavored to exclude personnel on the basis of their identity as homosexuals.
All of the branches of the armed forces put in place screening mechanisms designed to ferret out
homosexuals during the induction process. Thousands of men and women were kept from
serving their country, and often faced public opprobrium as a result. Notwithstanding the new
prohibition, many gay men and lesbians served in the armed forces in the Second World War,
but they had to be careful to whom they disclosed their sexual orientation.
41.
Across the country, notwithstanding legal restrictions, the number of lesbian and
gay bars and other meeting places increased during the war years. Military authorities responded
to the growth in the number of gay meeting places by collaborating with civil authorities to close
them or at least keep servicemen from visiting them. The Army and the Navy created a joint
Disciplinary Control Board that worked together with state liquor control agents and municipal
police forces to identify and police bars and night clubs, including almost one hundred in San
Francisco alone, with the intent of harassing and suspending the licenses of those that served a
gay clientele. Military and civilian police also cooperated in anti-vice raids against gay bars and
other meeting places. Servicemen who were caught in these raids risked being discharged, and
several thousand patriotic Americans who honorably served to defend their country were not
honorably discharged solely because of their gay or lesbian identity.
42.
Following the war, the Veterans Administration denied GI Bill benefits to soldiers
who had received undesirable discharges. Eventually, most other groups of soldiers with such
discharges had their benefits restored, but the Veterans Administration steadfastly refused to
restore them to homosexuals. This meant that gay veterans who were members of the “Greatest
10

Generation” and who had risked their lives for their country before being discharged were denied
the educational, housing, and readjustment allowances provided to millions of their peers.
V.

Modern American History: Post-WWII Period
A.

Government Policies in the McCarthy Era

43.
Even the stepped-up policing of gay life in the 1930s and 1940s did not equal the
scale of discrimination faced by gay men and lesbians in the generation following the Second
World War. The persecution of gay men and lesbians dramatically increased at every level of
government after the war.
44.
In 1950, following Senator Joseph McCarthy’s denunciation of the employment
of gay persons in the State Department, the Senate conducted a special investigation into “the
employment of homosexuals and other sex perverts in government.” The Senate committee
recommended excluding gay men and lesbians from all government service, civilian as well as
military. To support this recommendation, the committee argued that homosexual acts violated
the law, and it gave its imprimatur to the prejudice that “those who engage in overt acts of
perversion lack the emotional stability of normal persons” and that homosexuals “constitute
security risks.”
45.
The committee also portrayed homosexuals as predators: “[T]he presence of a sex
pervert in a Government agency tends to have a corrosive influence on his fellow employees.
These perverts will frequently attempt to entice normal individuals to engage in perverted
practices. This is particularly true in the case of young and impressionable people who might
come under the influence of a pervert. Government officials have the responsibility of keeping
this type of corrosive influence out of the agencies under their control. . . . One homosexual can
pollute a Government office.”
46.
The Senate investigation and report were only one part of a massive antihomosexual campaign launched by the federal government after the war. The Senate committee
reported that “between January 1, 1947, and August 1, 1950, approximately 1,700 applicants for
Federal positions were denied employment because they had a record of homosexuality or other
sex perversion.” In 1953, President Eisenhower issued an executive order requiring the
discharge of homosexual employees from federal employment, civilian or military. Thousands
of men and women were discharged or forced to resign from civilian and military positions
because they were suspected of being gay or lesbian. At the height of the McCarthy era, the U.S.
State Department discharged more homosexuals than communists. The government’s purge of
its gay employees prompted the founding of some of the earliest gay rights organizations. Frank
Kameny, for one, founded the first gay rights group in Washington, D.C. after he was dismissed
from his job as a government astronomer for being homosexual in 1957.
47.
President Eisenhower’s executive order prohibiting federal employment for
homosexuals also required defense contractors and other private corporations with federal
contracts to ferret out and discharge their homosexual employees. Many other private employers
without federal contracts adopted the federal government’s policy by refusing to hire gay people.
Furthermore, the FBI initiated a widespread system of surveillance to enforce the executive
11

order. As the historian John D’Emilio has noted, “The FBI sought out friendly vice squad
officers who supplied arrest records on morals charges, regardless of whether convictions had
ensued. Regional FBI officers gathered data on gay bars, compiled lists of other places
frequented by homosexuals, and clipped press articles that provided information about the gay
world. . . . Federal investigators engaged in more than fact-finding; they also exhibited
considerable zeal in using information they collected.”
48.
Two years after the Senate committee recommended that homosexuals be purged
from government employment, Congress signaled its conviction that homosexuals had no place
in American society in the most palpable way possible: by denying them entry into the country.
In 1952, Congress prohibited homosexuals (whom it called “psychopaths”) from entering the
country, much as it previously had prohibited immigration from Asia and curtailed the
immigration of Jews and Catholics from eastern and southern Europe. In the case of
homosexuals, the prohibition extended beyond people seeking long-term residency or
citizenship; a generation of foreign visitors applying for mere tourist visas had to sign statements
swearing they were not homosexual before they could make even the briefest trip to the United
States.
49.
Many state and local governments followed the federal government’s lead in
seeking to ferret out and discharge their homosexual employees. As a result of these official
policies, countless state employees, teachers, hospital workers, and others lost their jobs.
Beginning in 1958, for instance, the Florida Legislative Investigation Committee, which had
been established by the legislature in 1956 to investigate and discredit civil rights activists,
turned its attention to homosexuals working in the state’s universities and public schools. Its
initial investigation of the University of Florida resulted in the dismissal of fourteen faculty and
staff members, and in the next five years it interrogated some 320 suspected gay men and
lesbians. It “pressured countless others into relinquishing their teaching positions, and had many
students quietly removed from state universities.” Its 1959 report to the legislature called the
extent of homosexual activity in the state’s school system “absolutely appalling.” In addition, in
a well-publicized 1949 case in Massachusetts, Dr. Miriam Van Waters, long-time superintendent
of the Women’s Reformatory at Framingham, was dismissed by the Commissioner of
Corrections because she had either not known or had known and had not prevented “an
unwholesome relationship” that “existed between inmates of the Reformatory,” which had
“resulted in ‘crushes’, ‘courtships’, and homosexual practises [sic] among the inmates.” She was
then forced to defend her policies in public hearings held by a Massachusetts house committee
over several months.
50.
During this period, both federal and local agencies sought to curtail gay people’s
freedom of speech and the freedom of all people to discuss homosexuality. In 1954, postal
officials in Los Angeles banned an issue of the first gay political magazine, ONE, from the mails,
a ban overturned by the Supreme Court in 1958. In some cities the police continued to shut
down newsstands that dared to carry it. In 1957, San Francisco officials arrested Lawrence
Ferlinghetti and Shig Murao for publishing and selling “Howl,” a poem by Allen Ginsberg that
openly proclaimed his homosexuality.
51.
Censorship, government-sanctioned discrimination, and the fear of both made it
difficult for gay people to organize and speak out on their own behalf. Given the severity of
12

anti-gay policing, for instance, the Mattachine Society, the most significant gay rights
organization in the 1950s, repeatedly had to reassure its anxious members that the police would
not seize its membership list. In Denver in 1959, a few weeks after Mattachine held its first
press conference during a national convention, the police raided the homes of three of its Denver
organizers; one lost his job and spent sixty days in jail.
B.

The Demonization of Homosexuals

52.
The official harassment of homosexuals received further legitimization from a
series of press and police campaigns in the 1940s and 1950s that fomented demonic stereotypes
of homosexuals as child molesters out to “recruit” the young into their way of life. In response
to a series of local panics over sex crimes against women and children, in which homosexuals
were almost never identified as the culprits, numerous local newspapers and national magazines
claimed that children faced a growing threat from homosexuals. The press warned that, in
breaking with social convention to the extent necessary to engage in homosexual behavior, a
man had demonstrated the refusal to adjust to social norms that was the hallmark of the
psychopath. In 1950, Coronet, a popular national magazine, asserted: “Once a man assumes the
role of homosexual, he often throws off all moral restraints. . . . Some male sex deviants do not
stop with infecting their often-innocent partners: they descend through perversions to other forms
of depravity, such as drug addiction, burglary, sadism, and even murder.”
53.
The demonization of homosexuals by the press was reinforced by the statements
of public officials. A Special Assistant Attorney General of California claimed in 1949 that
“[t]he sex pervert, in his more innocuous form, is too frequently regarded as merely a queer
individual who never hurts anyone but himself. All too often we lose sight of the fact that the
homosexual is an inveterate seducer of the young of both sexes, and is ever seeking for younger
victims.” Detroit’s prosecuting attorney demanded the authority to arrest, examine, and possibly
confine indefinitely “anyone who exhibited abnormal sexual behavior, whether or not
dangerous.” In 1957, the Hartford Courant reported on comments by a Connecticut judge at a
criminal sentencing. The judge endorsed jail terms for homosexuals because his “observation”
was that homosexuality “ha[d] spread much too far.”
54.
Such press campaigns and official statements created fearsome new stereotypes of
homosexuals as child molesters, which continue to incite public fears about gay teachers and
parents as well as other gay people who come into contact with children. Between the late 1930s
and late 1950s, public hysteria incited by such press campaigns prompted more than half the
state legislatures to enact laws allowing the police to force persons convicted of certain sexual
offenses—or, in some states, merely suspected of being “sexual deviants”—to undergo
psychiatric examinations. These examinations could result in indeterminate civil confinements
for individuals deemed in need of a “cure” for their homosexual “pathology.”
C.

Another Escalation of Anti-gay Policing

55.
During the postwar era, bars became an especially important meeting place for
lesbians and gay men because they were often the only public spaces in which people dared to be
openly gay. Given their growing importance to gay people as a social center and the growing
pressure on the police to enforce regulations prohibiting bars from serving homosexuals, gay
13

bars became an important battleground in the postwar years. Despite the prevailing popular
animosity toward homosexuals, state courts in New York and California issued rulings that
curtailed the right of state liquor authorities and the police to discriminate against gay bar
patrons. Official antipathy to homosexuals was so strong, however, that police officials
circumvented or simply disregarded these judicial decisions.
56.
This sharp escalation in the policing of gay life after the Second World War
occurred throughout the country. In 1955, for example, the government of Boise, Idaho
launched a fifteen-month investigation of gay men in town, interrogating fourteen hundred
persons and pressuring men known to be gay to reveal the names of other gay men. Police
departments from Seattle and Dallas to New Orleans and Baltimore stepped up their raids on
bars and private parties attended by gay and lesbian persons, and made thousands of arrests for
“disorderly conduct.” By 1950, Philadelphia had a six-man “morals squad” arresting more gay
men than the courts knew how to handle, some 200 a month. In the District of Columbia, there
were more than a thousand arrests every year. In 1965, the Boston City Council’s Committee on
Urban Renewal debated whether to bulldoze several downtown gay bars. A proponent of the
effort, City Councilor Frederick Langone, gave a speech at the meeting calling for the
destruction of “these incubators of homosexuality and indecency and a Bohemian way of life,”
and insisting that “[w]e must uproot these joints so innocent kids won’t be contaminated.” Many
gay bars were razed in the “revitalization” that followed. In 1969, a Councilman in Rocky Hill,
Connecticut called for a nightclub frequented by homosexuals (Alice’s Joker Club) to be closed
as a “public nuisance” because it was a “threat to the morals” of the town’s citizens. From 1933
until the mid 1960s, hundreds of bars that tolerated gay customers were closed in New York City
alone. Some bars in New York and Los Angeles posted signs telling potential gay customers: “If
You Are Gay, Please Stay Away” or, more directly, “We Do Not Serve Homosexuals.”
According to the historian John D’Emilio, raids on gay bars in Chicago in this period were “a
fact of life, a danger every patron risked by walking through the door.”
VI.

The Gay Rights Movement and Its Opponents in the 1970s and 1980s
A.

Early Successes of the Gay and Lesbian Rights Movement

57.
The dramatic escalation in policing and suppression in the post-war years failed to
eradicate gay life. In larger cities, lesbians and gay men covertly patronized bars and restaurants,
which they turned into informal meeting places, took over remote sections of public beaches, and
held dances and parties. In many smaller towns, gay life took shape unnoticed in church choirs,
amateur theaters, and women’s softball leagues, and was sustained by closely knit social circles.
58.
Nonetheless, most gay men and lesbians responded to the escalation in policing
after the Second World War by keeping their homosexuality carefully hidden from non-gay
people. They developed elaborate verbal codes that allowed them to communicate with one
another while remaining invisible to hostile outsiders. The word “gay” is a good example of
this: before the 1970s few heterosexuals realized gay people had given it a distinctly homosexual
meaning. But the very success of such subterfuges in concealing gay life made it difficult for
gay people to find one another in the 1950s, and it severely limited the capacity of gay people to
organize on their own behalf.

14

59.
The earliest gay rights organizations, the Mattachine Society, ONE, and the
Daughters of Bilitis, were founded in the early 1950s at the height of the demonization of
homosexuals as dangerous, irrational, and unstable pariahs who threatened the nation’s children
as well as national security. This initial generation of activists worked to meet and educate
potential allies among sociologists, psychologists, criminologists, and other professionals who
had the credibility to speak on homosexuality that was denied to homosexuals themselves.
60.
Gay rights organizations began to influence public policy in the mid-1960s,
although the pace of change varied enormously across the country. The New York Mattachine
Society’s success in 1966 in persuading Mayor John Lindsay to end the widespread police use of
entrapment had a profound effect on gay male New Yorkers, who for the first time in decades
did not have to worry that the men who approached them in bars and elsewhere were undercover
policemen. New York and California state court rulings finally curtailed the policing of gay bars
and other meeting places in those states in the 1960s, but in some other parts of the country the
police continued to raid gay bars well into the 1970s and 1980s. The growing divergence in the
treatment of gay people in different parts of the country prompted a growing number of gay
people to migrate from hostile areas to New York, Boston, San Francisco, Los Angeles, Chicago,
and other more tolerant cities and regions. This mass migration, in turn, affected the political
and cultural climate of those cities and regions, making them more likely to enact gay rights
legislation and similar policies.
61.
Major institutions that once helped legitimize anti-gay attitudes also began to
change their positions. Medical writers and mental health professionals whose stigmatization of
homosexuality as a disease or disorder had been used to justify discrimination for decades were
among the first to change their views. In 1973, the American Psychiatric Association voted to
remove homosexuality from its list of mental disorders. The American Psychological
Association soon followed suit. However, the American Psychiatric Association’s decision was
fiercely opposed by prominent members of the association such as Charles Socarides and Irving
Bieber. They and other medical professionals who claimed homosexuality was a treatable
psychological disorder continued to receive considerable attention.
62.
Censorship of gay images and speech declined. By the early 1960s, competition
from television led the Hollywood studios to reorganize their nearly thirty-year-old censorship
code, enabling the studios to make films for adult viewers which addressed “serious themes”
such as homosexuality. These themes remained off-limits for television. The studios initially
still included very few gay characters in their features, and the television networks included
virtually none, but ending formal censorship opened a door that resulted in significant cultural
changes in later years.
63.
A small but growing number of municipalities enacted legislation protecting
people from certain forms of discrimination on the basis of their sexual orientation. In 1972,
East Lansing, Michigan, home to Michigan State University, became the first town to do so.
Within five years, another twenty-seven communities passed such legislation, more than half of
them university towns such as Ann Arbor, Austin, Berkeley, and Madison. They were joined by
a handful of larger cities such as San Francisco, Minneapolis, Seattle, and Detroit. During this
same period, however, a number of states enacted new legislation that criminalized homosexual
sodomy, even as they decriminalized heterosexual sodomy.
15

64.
Attitudes toward homosexuals and homosexuality in some religious
denominations also began to change. Since the 1970s, many mainline Protestant denominations
have issued official statements condemning legal discrimination against homosexuals and
affirming that homosexuals ought to enjoy equal protection under criminal and civil law.
Several of these groups descended from the historically influential denominations whose
religious authority had been invoked to justify colonial statutes against sodomy. The Lutheran
Church in America, the Unitarian Universalist Association, the United Methodist Church, the
United Church of Christ, the Protestant Episcopal Church, the Disciples of Christ, and the United
Presbyterian Church in the U.S.A. all issued statements in support of civil rights for gay men and
lesbians by 1980.
65.
Those seven denominations, however, account for only 10.3 percent of the
American population. Many more Americans belong to faith traditions that remain strongly
opposed to gay civil rights, including 26.3 percent affiliated with historically white evangelical
Protestant churches and 23.9 percent who are Catholics. Leading clergy and laypeople from
those churches have played a major role in opposing gay rights measures across the country.
B.

Anti-Gay Discrimination in the 1970s and 1980s

66.
Gay men and lesbians continued to suffer discrimination at the hands of
government officials in the 1970s and 1980s. For example, police continued to raid gay bars in
some cities. In 1970, the Connecticut State Motor Vehicle Department refused to renew the
drivers license of a man on the grounds that he was “an admitted homosexual and that his
homosexuality makes him an improper person to hold an operator’s license.”
67.
Beginning in the late 1970s, the initial success of the gay movement in securing
local gay rights legislation, as well as the increasing visibility of gay people in the media,
provoked a vigorous, negative reaction. Anti-gay rights advocates drew on pernicious
stereotypes developed in previous decades to argue that enacting gay rights laws, permitting gay
people to teach, and even simply allowing gay characters to appear on television sitcoms
threatened the security of children and the stability of the family.
68.
The anti-gay rights campaign of this era was effectively launched in 1977, when
Anita Bryant, a prominent Baptist singer and the spokeswoman for the Florida citrus growers,
led a campaign to “Save Our Children” from newly enacted civil rights protections for gay men
and lesbians in Dade County, Florida. Her success in persuading a decisive majority of Miami
voters to vote against the ordinance depended heavily on her use of the still powerful postwar
images of homosexuals as child molesters. Her organization published a full-page advertisement
the day before the vote warning that the “other side of the homosexual coin is a hair-raising
pattern of recruitment and outright seductions and molestation.” Her victory in Miami prompted
groups in other cities to take up the cause, and in the next three years, laws extending civil rights
protections to gay men and lesbians were repealed in more than a half-dozen bitterly fought
referenda stretching from St. Paul, Minnesota to Eugene, Oregon. Gay rights advocates
managed to defeat such referenda only in two elections, in November 1978, when Seattle voted
to preserve its antidiscrimination ordinance and when California rejected the Briggs Initiative.
The Briggs Initiative was a proposal so onerous it would have prohibited public school teachers,
gay or straight, from saying anything that could be construed as “advocating homosexuality.”
16

69.
The Save Our Children campaign had other far-reaching effects. The day after
the Dade County gay rights ordinance was repealed, the governor of Florida signed into law a
ban on adoption by lesbians and gay men, the first such statewide prohibition. Thousands of
children who might otherwise have had loving parents were thus denied the stability of family
life. Similarly, in 1985, the Massachusetts Department of Social Services removed two boys
from their foster care placement with a gay male couple and implemented a policy of preferred
placement in “traditional family settings.” While Massachusetts’ ban was reversed in 1990 as a
result of litigation, the Florida ban remained in effect until 2010.
70.
Across the country, the unfounded fear that homosexuals posed a threat to
children itself threatened some children: those already being raised by lesbians and gay men. In
the 1970s, most children being raised by lesbian or gay parents had been born before their
parents came out as gay. When a parent came out, any dispute over child custody that had to be
resolved in court was likely to be heavily influenced by stereotypes and prejudices. A growing
number of such cases reached the courts in the 1970s and 1980s, and in case after case the courts
took the custody of children away from a mother or father whose estranged husband or wife used
their former spouse’s lesbian or gay identity against them. Some courts confronting early
disputes of this nature articulated a “per se” rule against custody and visitation claims made by
gay and lesbian parents, holding that homosexuality was inherently inconsistent with parenthood
as a matter of law.
71.
The long-standing association of homosexuals with disease was reinforced in the
1980s by the media’s initial sensationalist coverage of AIDS, which frequently depicted
homosexuals as bearers of a deadly disease threatening others. Fear of contagion prompted a
new wave of discrimination against gay people in medical care, housing, and employment.
Media coverage and the government’s slow response to the disease also reflected and reinforced
the enduring conviction that homosexuals stood outside the moral boundaries of the nation.
Even after the name AIDS (Acquired Immune Deficiency Syndrome) replaced the moniker
GRID (Gay-Related Immune Deficiency), media reports initially minimized the crisis by
reassuring Americans that the “general public” was not at risk, since the disease only affected
homosexuals and a handful of other groups, as if gay people were not part of the “general
public.”
72.
The media coverage of AIDS and the numerous campaigns against local gay
rights laws had a dramatic effect on public opinion. In 1987, six years after the AIDS crisis
unleashed a new wave of fear of homosexuals, public disapproval of homosexuality reached its
peak. Polling data showed virtually no change through the 1970s, but the number of people who
declared that homosexual relations were always wrong climbed from 73 percent in 1980 to 78
percent in 1987. In the 1980s, gay rights activists secured the enactment of gay rights ordinances
in an additional forty cities, counties, and suburbs, including Chicago, Boston, New York, and
Atlanta, bringing the national total to eighty. But these victories often were more difficult to
achieve than they had been in the 1970s. In New York City, for example, the law passed the city
council only after more than a decade. In Chicago, it took fifteen years of dogged struggle, led
primarily by 20th ward Alderman Clifford P. Kelley.
73.
National religiously-inspired organizations formed in the 1970s and 1980s, such
as the Moral Majority, Focus on the Family, Family Research Council, and Traditional Values
17

Coalition, provided national leadership and coordination to the movement against gay rights and
disseminated campaign materials, political strategies, and financial resources to local groups
fighting gay rights ordinances.
VII.

The Persistence of Anti-Gay Discrimination from the 1990s to the Present
A.

Legal Inequality in State Law

74.
The spread of AIDS and the escalation of debate over gay rights at the local level
fueled a growing polarization of the nation over homosexuality in the 1980s and especially the
1990s. By the end of the 1980s, even cities and states that had managed to pass gay rights laws
found those laws under attack from an increasingly well-organized and well-funded opposition.
Beginning in 1988, and reaching a crescendo from 1992 to 1994, groups in Colorado, Oregon,
Maine, and six other states used anti-gay referenda and initiatives to challenge gay rights laws,
and built local anti-gay rights organizations. In the twenty-five years after Anita Bryant’s
campaign in Florida, anti-gay activists introduced and campaigned for more than sixty anti-gay
rights referenda around the country. Nationwide, gay rights supporters lost almost three-quarters
of these contests. In Oregon alone, there were sixteen local anti-gay initiatives in 1993 and
another eleven in 1994. Oregon’s gay rights supporters lost all but one. In 1993, Cincinnati
voters passed Issue 3, which amended the city charter to prohibit the city from extending civil
rights protections based on sexual orientation. After five years of litigation the courts let the
amendment stand. It was not until 2004 that the Cincinnati votes repealed the amendment.
75.
Following Anita Bryant’s lead, anti-gay rights activists frequently fomented voter
fear of gay people by reviving demonic stereotypes of homosexuals as perverts who threatened
the nation’s children and moral character. Two videos that repeatedly were screened in churches
and on cable television, “The Gay Agenda” and “Gay Rights, Special Rights,” juxtaposed
discussions of pedophilia with images of gay teachers and gay parents marching with their
children in Gay Pride parades. With little subterfuge, the videos depicted homosexuals as child
molesters. This message was reinforced by mass mailings and door-to-door distribution of antigay pamphlets, which fostered a climate of hostility and fear during the referenda.
76.
In 1992, voters in Colorado passed Amendment Two, which amended the state
constitution to prohibit any municipality or unit of the government from enacting anti-gay
discrimination ordinances or policies. This amendment repealed the ordinances already enacted
by Denver, Boulder, and Aspen. Moreover, it removed from the political arena any future effort
to secure anti-discrimination legislation for gay people. In the face of public antipathy to gay
people, represented by the success of this and other referenda overturning non-discrimination
laws, several legal groups filed a lawsuit, Romer v. Evans, challenging the constitutionality of
such constitutional amendments. Once again, the courts protected the rights of the minority
against the prejudice of the majority. In 1996, the Supreme Court overturned this state
constitutional amendment because it withdrew legal protection against discrimination for gay
men, lesbians, and bisexuals, but no others.
77.
Although a number of states now have extended basic anti-discrimination
protections to gay men and lesbians, in twenty-nine states, including Ohio, there is no statutory
barrier to firing, refusing to hire, or demoting a person in private sector employment solely on
18

the basis of their identity as a gay man or lesbian. In approximately twenty states there is no
statutory or administrative barrier to such discrimination even in state government employment.
Similarly, gay men and lesbians remain without statutory protection from discrimination in
housing in thirty states, including Ohio. And, despite the critical role played by harassment of
gay and lesbian meeting places in enforcing discrimination toward them throughout the twentieth
century, gay and lesbian people in Ohio and twenty-eight other states have no statutory
protection from discrimination in public accommodations.
B.

Legal Inequality in Federal Law

78.
At the national level, employment discrimination against gay men and lesbians by
federal agencies remained permissible until the late 1990s. Although the outright ban on hiring
gay federal employees was lifted in 1975, federal agencies were free to discriminate against gay
men and lesbians in hiring and employment decisions until former President Clinton issued a
first-of-its-kind executive order forbidding such hiring discrimination in 1998.
79.
In 1992, President Bill Clinton’s proposal to end the armed forces’ policy banning
lesbians and gay men from serving in the military sparked a firestorm in the first months of his
presidency and revealed how deeply divided the nation remained. The public outcry against his
plan (calls to Congress ran a hundred to one against lifting the ban) had been stoked by years of
local anti-gay organizing. Opposition to the new policy by both the Pentagon leadership and the
public led Congress and President Clinton to enact a new law known as “Don’t Ask, Don’t Tell,”
which allowed for the discharge of gay and lesbian soldiers if they acknowledged their sexual
orientation under any circumstances, even in private counseling. Discharge of gay men and
lesbians from the military continued after “Don’t Ask, Don’t Tell” became law in 1993.
According to the Servicemembers Legal Defense Network, an organization dedicated to assisting
military personnel affected by “Don’t Ask, Don’t Tell,” more than 14,000 service members were
fired under the law.
80.
The repeal of “Don’t Ask, Don’t Tell” became effective in 2011. Although the
repeal was an important advance for gay men and lesbians, it did not restore the careers of the
thousands of service members who had been discharged under the policy. Nor does it protect
gay men and lesbians from the significant discrimination that they continue to face in other
domains. After years of effort, gay and lesbian advocates and their allies still have not been able
to enact any federal legislation that specifically prohibits discrimination in schools, employment,
housing, and public accommodations on the basis of sexual orientation. The Employment NonDiscrimination Act, which would extend express employment protections on the basis of sexual
orientation, has been introduced regularly since 1994 (and earlier versions as far back as the
1970s) and has never passed both houses of Congress.
C.

Discrimination in Adoption, Custody, and Parenting

81.
In the 1990s, lesbian mothers and gay fathers continued to risk their parenting
rights when their former different-sex spouses used their sexual orientation to try to deny them
custody or visitation rights in divorces. By the mid-1990s, courts in most states followed rules
that required individualized assessment of a parent’s fitness. But as Julie Shapiro’s 1996 study
of custody cases around the country demonstrated, many courts continued to infuse those
19

individualized assessments with their own prejudice against lesbians and gay men. As she
discovered, courts were especially disapproving of lesbians and gay men who were honest about
their sexual orientation with their children. In a widely publicized case, a Virginia trial court in
1993 granted a grandmother’s petition to take Sharon Bottoms’ two-year-old son away from her
because, as the trial court judge explained, her lesbian “conduct is illegal . . . a Class 6 felony in
the Commonwealth of Virginia.” He went on to declare “that it is the opinion of this Court that
her conduct is immoral” and “renders her an unfit parent.” Virginia’s Supreme Court upheld the
trial court’s decision terminating Sharon’s parental rights despite the presumption favoring her as
a natural parent. In doing so, it relied on a wider range of evidence, including the finding that
Bottoms’ lesbianism would subject her child to social condemnation and thus disturb the child’s
relationships with peers and the community at large. Some courts had used similar reasoning to
remove children from the homes of divorced white mothers who had married or lived with black
men, a practice ruled unconstitutional by the Supreme Court in 1984. In that case, Palmore v.
Sidoti, Chief Justice Warren Burger ruled that “private biases may be outside the reach of the
law, but the law cannot directly, or indirectly, give them effect.” 466 U.S. 429, 433 (1984). But
courts in many states continued to give legal effect to the private bias they assumed existed
against lesbian and gay parents by preferring heterosexual parents over gay parents, without
regard to other factors bearing on the child’s best interests.
82.
Gay and lesbian parents continue to be forced by some courts to choose between
hiding their gay identities and losing parental rights. As one Texas attorney commented in 1988,
“unless [a mother] ended her open lesbian relationship I would have little chance of winning a
custody trial.” According to Clifford J. Rosky, in 2004, after ordering a gay father not to expose
his child to his “gay lover(s) and/or gay lifestyle,” a Tennessee trial court sentenced the father to
two days in jail for coming out to the child.
83.
State and popular efforts that began in the 1970s to ban lesbians and gay men
from adopting or serving as foster parents continued throughout the 1990s and 2000s. For
example, in 2000, Mississippi’s legislature passed a ban on adoption by same-sex couples that
was subsequently signed by the governor. As recently as 2008, Arkansas enacted by popular
referendum a ban on foster care and adoption by gay people.
84.
Some states enacted laws that bar recognition of out-of-state adoptions by samesex couples. For example, in 2004, Oklahoma passed the “Adoption Invalidation Law,” which
stated that Oklahoma “shall not recognize an adoption by more than one individual of the same
sex from any other state or foreign jurisdiction.”
85.
Some states refuse to allow a biological parent’s same-sex partner to adopt the
children they raise together. For example, as recently as December 2010, the North Carolina
Supreme Court invalidated a second parent adoption by a woman’s same-sex partner, holding
that a non-biological same-sex partner could not be recognized as a legal parent.
86.
During the 1980s and 1990s, gay and lesbian parents continued to face significant
obstacles in custody and visitation disputes. Courts continued to demonstrate harsh judgments
toward gay and lesbian parents even when a child was conceived with two gay or two lesbian
parents intending to raise the child jointly. This was especially evident when the courts had to
decide where to place a child when the child’s biological mother died and one of her relatives
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contested the right of her surviving partner, the child’s second mother, to continue to raise the
child. In a number of cases, courts granted custody to those relatives despite clear evidence that
the child wished to remain with her surviving mother.
D.

Depiction of Gay Men and Lesbians in the Media

87.
With the decline in movie and television censorship and the growing interest in
gay people and issues, there was a significant increase in the coverage of gay issues in the media
and in the number of gay characters in movies and on television in the 1990s. By the time the
immensely popular “Will & Grace” premiered on NBC in 1998, gay and lesbian characters were
a more regular part of the television landscape. This exposure changed the dominant
representation of homosexuals. Gay people usually appeared in the media in the 1950s as
shadowy and dangerous figures, but they now appeared as a diverse and familiar group whose
all-too-human struggles and pleasures drew the interest of large viewing audiences.
88.
It was not only in the media that heterosexuals began to see gay and lesbian
people. Dramatically increasing numbers of lesbians and gay men revealed their homosexuality
to their families, friends, neighbors, and co-workers in the 1990s. Polling data suggest the
magnitude of the shift. In 1985, only a quarter of Americans reported that a friend, relative, or
co-worker had personally told them that they were gay, and more than half believed they did not
know anyone gay. Fifteen years later, in 2000, the number of people who knew someone openly
gay had tripled to three-quarters of the population. Acceptance of gay men and lesbians and
support for civil rights protections increased as growing numbers of heterosexuals realized that
some of the people they most loved and respected were gay.
89.
It is important not to overstate the results of this nationwide “coming out”
experience, however. In 2000, a significant majority of Americans still expressed moral
disapproval of homosexuality. Moreover, support for lesbian and gay civil rights and equality
continued to show significant regional differences. Polls showed that public opinion in
Massachusetts, Connecticut, and Hawaii was the most tolerant. Support for civil rights also was
strong in most other states in New England, in New Jersey and New York, and in other regional
clusters: Maryland in the mid-Atlantic, Wisconsin, Minnesota, and Illinois in the upper Midwest,
and California, Oregon, and Washington on the West Coast. Anti-gay sentiment was strongest in
southern states and in the lower Midwest and plains states. The effects of these regional
differences could be seen in regional variations in congressional votes on key gay rights issues,
in the treatment of gay couples and individuals by state laws, regulations, and court rulings
concerning adoption and foster parenting, parental rights, and in the passage of gay rights laws.
Only two states—Wisconsin in 1982 and Massachusetts in 1989—enacted legislation banning
anti-gay discrimination before 1990. The number rose to eleven by 2000, but eight of the states
were in the Northeast or on the Pacific Coast. The rights of gay people continue to vary
enormously across the nation.
E.

Continued Official, Religious, and Private Condemnation of Homosexuality
in the 1990s-2000s

90.
Gay people also continue to face discrimination and opprobrium from highly
regarded institutions and officials. The Boy Scouts of America, a federally-chartered
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organization, long insisted that “homosexual conduct is not morally straight,” and refused to
allow gay people into the organization. Boy Scouts of America v. Dale, 530 U.S. 640, 651
(2000). Earlier this year, when the Boy Scouts announced that it would consider changing its
national exclusionary membership policy to allow local leaders to decide whether to allow
openly gay participants, the proposal faced a firestorm of opposition. Dozens of conservative
and religious groups lobbied against the proposed change as a “grave mistake” and petitioned the
Boy Scouts to “show courage” and “stand firm for timeless values”; they succeeded in
persuading the Boy Scouts to delay a vote on the issue. Although the national organization
ultimately voted to allow gay boys to join the organization, it continues to exclude gay men over
the age of 18. Less than a decade ago, the Chief Justice of the Alabama Supreme Court referred,
in a judicial opinion, to homosexual conduct as “abhorrent, immoral, detestable, a crime against
nature, and a violation of the laws of nature and of nature’s God upon which this Nation and our
laws are predicated.” Ex Parte H.H., 830 So. 2d 21, 26 (2002) (Moore, C.J., concurring).
91.
Although the American Psychiatric Association (APA) removed homosexuality
from its list of mental disorders in 1973, dissident psychiatrists and psychologists led by Charles
Socarides and Joseph Nicolosi established the National Association for Research and Therapy of
Homosexuality (NARTH) in 1992. Disagreeing with both the APA and prevailing professional
opinion, NARTH continues to disseminate materials claiming a scientific basis for believing that
homosexuality is a psychological disorder and a “potentially deadly lifestyle,” and that
homosexuals can be “healed.” NARTH also lectures, partners with religious organizations,
supports conversion therapy activities, and files amicus briefs in court cases.
F.

Anti-Gay Policing and Private Anti-Gay Violence

92.
Although police harassment of gay men and lesbians and their meeting places is
not as common as it was some years ago, it continues to be a problem. In 2009, for example,
there were highly publicized police raids of gay bars in Atlanta, Georgia, and in Ft. Worth,
Texas, where one patron was critically injured.
93.
Gay people also continue to face violence motivated by anti-gay bias. A handful
of horrific incidents have drawn widespread media attention. In 1984, in Bangor, Maine, 23year-old Charlie Howard was targeted by three teens due to his sexual orientation. They attacked
him and, although he protested that he could not swim, threw him off a bridge into the
Kenduskeag Stream, where he drowned. Then, in 1998, Matthew Shepard, a college student in
Laramie, Wyoming, was bound, tied to a fence, beaten with a pistol, and left to die because he
was gay. Ten years later, Lawrence “Larry” Fobes King, a 15-year-old student at E.O. Green
Junior High School in Oxnard, California, was shot and killed in school by a fellow student
because of his sexual orientation. But the problem reaches far beyond these three incidents. The
FBI reported 1,260 hate crime incidents based on perceived sexual orientation in 1998 and 1,293
in 2011. In 2008, the year of Lawrence King’s murder, a national coalition of anti-violence
social service agencies identified twenty-nine murders motivated by the assailants’ hatred of
lesbian, gay, bisexual, or transgender people. The threat of violence continues to lead many gay
people to hide their identities or to avoid such commonplace expressions of affection as holding
hands with their partners in public.

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94.
The most vulnerable victims of discrimination are youth. A national study
published in December 2010 found that gay and lesbian teenagers are nearly 40 percent more
likely than heterosexual teenagers to be punished by schools, police, and the courts. According
to the Gay, Lesbian and Straight Education Network’s 2009 National School Climate Survey
published in 2010, 61.1 percent of lesbian, gay, bisexual, and transgender (LGBT) students
surveyed felt unsafe at school because of their sexual orientation; 84.6 percent were verbally
harassed because of their sexual orientation; 40.1 percent were physically harassed in the past
year because of their sexual orientation; and 18.8 percent were physically assaulted because of
their sexual orientation. A recent study sponsored by the New York City Council noted the overrepresentation of LGBT youth among the city’s homeless population. And the recent spate of
suicides among LGBT youth has highlighted the personal consequences of the ostracism and
demonization of gay men and lesbians in American society.
95.
One example of the harassment that LGBT youth may face was recounted by
Derek Henkle, a high school student in Washoe County School District, Nevada, who sued the
District for failing to protect him from anti-gay harassment. Henkle v. Gregory, 150 F. Supp. 2d
1067 (D. Nev. 2001). His suit contended that, on one occasion, students lassoed a rope around
his neck in the school parking lot and threatened to kill him by dragging him from their truck.
On another occasion, Henkle explained he was punched by another student while two school
security guards stood by. Henkle also reported that one of his principals told him to “stop acting
like a fag.” The case resulted in the largest pre-trial settlement of its kind in the nation at the
time.
G.

Marriage

96.
Gay men and lesbians are still prohibited from marrying in the vast majority of
states in this country, and the question of marriage rights for same-sex couples remains hotly
contested across-the-board. Some of the arguments made in the debate over the right of gay
couples to marry have echoed those made in earlier debates over the rights of disfavored
minority groups. Fifty years ago, for instance, segregationists often claimed that segregation and
statutes banning interracial marriage reflected God’s plan for humankind. In the 1960s, a
Virginia judge who upheld that state’s law against interracial marriage in the lower-court
proceeding in Loving v. Virginia claimed that “Almighty God created the races white, black,
yellow, malay and red, and he placed them on separate continents. And but for the interference
with his arrangement there would be no cause for such marriages. The fact that he separated the
races shows that he did not intend for the races to mix.”
97.
Opponents of the right of gay people to marry or adopt children also have drawn
on their reading of scripture to justify their positions. As recently as 2002, when the Supreme
Court of Alabama reversed the Alabama Court of Civil Appeals’ decision to grant a lesbian
mother custody of her children, the Chief Justice of the Supreme Court of Alabama used
language as strong as that used by the trial judge in Loving v. Virginia in his concurring opinion:
“Homosexuality is strongly condemned in the common law because it violates both natural and
revealed law. The law of the Old Testament enforced this distinction between the genders by
stating that ‘[i]f a man lies with a male as he lies with a woman, both of them have committed an
abomination.’ Leviticus 20:13 (King James) . . . the common law designates homosexuality as

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an inherent evil, and if a person openly engages in such a practice, that fact alone would render
him or her an unfit parent.” Ex parte H.H., 830 So. 2d 21, 33, 35 (Ala. 2002).
98.
The vigorous opposition to ending discrimination against lesbian and gay couples
in marriage law is the latest example of this pattern. The marriage issue first reached the national
stage in 1993, when Hawaii’s Supreme Court ruled that the state’s ban on marriages between
same-sex couples presumptively violated the state’s equal rights amendment and remanded the
lawsuit challenging that ban to a lower court for review. Baehr v. Lewin, 852 P.2d 44 (Haw.
1993). By 1996, when a second trial began in the lower court, the prospect of gay couples
winning the right to marry had galvanized considerable opposition. Ultimately, while the
litigation was pending, Hawaii amended its constitution to give the legislature the authority to
limit marriage to different-sex couples, see Haw. Const. art. I, § 23, which it did. The Hawaii
Supreme Court then dismissed the case as moot. Baehr v. Miike, Civ. No. 20371 slip op. at 5-8
(Dec. 9, 1999) (taking notice of constitutional amendment). In addition, under pressure from
organizations proclaiming support for “traditional family values,” the United States Senate
passed the Defense of Marriage Act (DOMA) on the day the Hawaii trial began. The Act
provided a federal definition of marriage as the union of one man and one woman and declared
that no state needed to give “full faith and credit” to “same-sex marriages” licensed in another
state. It also denied federal benefits to such married couples. Fourteen states passed state-level
DOMA statutes that year, and another eleven passed such statutes the following year. In 2004,
when Massachusetts became the first state to permit gay couples to marry, a full thirteen states
passed constitutional amendments banning such marriages even though twelve of those states
already had enacted statutory state DOMAs.
99.
Indeed, in each state where gay men and lesbians have achieved the right to marry
—either through judicial decision or legislative action—there has been significant and organized
action by those opposed to marriage rights for same-sex couples to take that right away.
California provides a good—and especially contentious—example. In February 2004, San
Francisco Mayor Gavin Newsom instructed city officials to issue marriage licenses to same-sex
couples. The California Supreme Court ordered the city to stop doing so the following month,
and it later nullified the marriages which had been performed. In 2005, and again in 2007,
California’s legislature approved bills that would legalize marriage for same-sex couples, but
both bills were vetoed by then-Governor Schwarzenegger. In May 2008, the California Supreme
Court decided in In re Marriage Cases, 183 P.3d 384 (Cal. 2008) that the privacy and due
process provisions of the California Constitution guaranteed the basic civil right of marriage to
all individuals and couples, without regard to their sexual orientation. Six months later, on
November 4, 2008, California voters approved Proposition 8, adding to the California
Constitution the provision “Only marriage between a man and a woman is valid or recognized in
California.” Same-sex couples immediately sued to prevent the enforcement of Proposition 8,
but their efforts were rebuffed by the California Supreme Court in Strauss v. Horton, 207 P.3d
48 (Cal. 2009). The court held that the amendment was lawfully enacted, but that it did not
invalidate marriages of same-sex couples performed in California prior to its effective date. The
right of same-sex couples to marry in California was only restored in 2013 after a federal trial
court found Proposition 8 unconstitutional, and the U.S. Supreme Court subsequently declined to
review the decision on the merits because no appellant had standing. Hollingsworth v. Perry,
133 S. Ct. 2652, 186 L. Ed. 2d 768 (2013)
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100. Opponents of marriage equality who supported Proposition 8 mobilized smne of
the most enduring anti-gay stereotypes to heighten public apprehension. Several television
commercials aired by the supporters of Proposition 8, for instance, warned that marriage equality
might encourage children to become gay themselves. The approval of California's Proposition 8
along with similar laws and constitutional amendments in forty other states indicates the
enduring influence of anti-gay hostility and the persistence of ideas about the inequality of gay
people and their relationships.
101. Iowa provides another example. In April2009, a unanimous Iowa Supreme Court
struck down the exclusion of qualified same-sex couples from civil marriage. In response,
national organizations opposed to marriage for same-sex couples, such as the National
Organization for Marriage and the American Family Association, initiated a campaign for the
removal of three of the judges involved in that decision who were subject to retention elections.
The campaign was successful, and all three judges were ousted from their position on the bench.

Conclusion
Today the civil rights enjoyed by gay and lesbian Americans vary substantially from
region to region and are still subject to the vicissitudes of public opinion. Like other minority
groups, they often must rely on judicial decisions to secure equal rights. The role of the courts
in this dispute is reminiscent of earlier disputes in which courts had to confront public opposition
to minority rights. In 1948, when the California Supreme Court became the first state supreme
court in the nation to overturn a state law banning interracial marriage, it bucked the tide of
white public opposition to such marriages. While the United States Supreme Court overturned
the remaining state bans on interracial marriage in 1967 in Loving v. Virginia, it was not until
2001 that more Americans approved of interracial marriage than disapproved of it. History has
vindicated the judges who had the courage and foresight to uphold the constitutional rights of
disfavored minorities in the face of majoritarian hostility.

.
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Signed under penalty of perjury under the laws of the United States this
'2013.

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JQ_ day of

George Chauncey, Ph.D.

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