Graphic by Chrys Marr (She/They)
June 26, 2015.
This is the date same-sex marriage was legalized in all 50 states. The case was Obergefell v. Hodges, and it found that the Equal Protection Clause of the Fourteenth Amendment requires all states to grant marriage licenses to same-sex couples. This case is a milestone for the LGBTQ+ community as it represents the accumulation of decades of activism and demands for equality. But what exactly did it take to get here?
Let us start at the very beginning. Sodomy is a complicated concept, but to put briefly, sodomy is societally unacceptable sexual acts. This means the definition of sodomy has undergone some changes, but, legally, the definition is a “crime against nature.” In colonial times, all the way back in the 1600s, sodomy was essentially any sexual acts that did not lead to procreation, and, until the federal government rid of sodomy laws in 2003 in the Lawrence v. Texas case, breaking these laws was considered a federal crime; offenders were typically given long, sometimes even lifetime, sentences. Before 2003, sodomy encompassed homosexuality, bestiality, pedophilia, and anal and oral acts. These laws were frequently used to police same-sex couples and legally enforce a heterosexual society.
Though today it is easy to brush off the severity of these laws and think that our contemporary society is far more progressive, it is important to note that these sodomy laws were held up until the beginning of the twentieth-first century, meaning they existed for over three hundred years. That’s three hundred years of legally justified violence towards the LGBTQ+ community, three hundred years of not just accepted oppression but actively encouraged oppression against queer individuals. This hateful culture is what the United States was founded on, and the acceptance of the queer community, chronologically speaking, is an extremely modern phenomenon.
A List of Laws and Other Legal Policies
Don’t worry, I’ll keep it short.
- The Comstock Act of 1873: this law banned sending any “obscene” mail, although it did not give a definition of obscene. It primarily targetted feminist and queer articles, art (films, photos, plays, etc.) and led to the suppression of the LGBTQ+ community in media
- Army Regulations, 1921, 1941, 1945: homosexuals and gender nonconforming people could be rejected from serving in the military.
- In 1941 and 1945, homosexual men were banned from joining the military, and homosexual men who were caught in the military would be dishonorably discharged, could not receive veterans benefits, and were sentenced to five years in prison.
- Sterilization, 1910s: People convicted of being “perverts” or “degenerates” (both terms were used to refer to homosexual/transgender individuals) could legally be sterilized in select states: California, Iowa, and Oregon.
- Mental Institutions, 1930s: Since homosexuality was considered a mental illness and queer individuals were considered sex offenders and mental defectives, queer people could legally be sent to mental institutions in select states: Michigan, Illinois, California, and Minnesota.
- Liquor Licenses (nineteenth and twentieth centuries): cities used liquor licenses that were only given to individuals who were of “good moral character” and were not given to “degenerates” or “female impersonators,” both of which were dog-whistle terms referring to the LGBTQ+ community.
The Lavender Scare
After World War II, the queer community had begun to flourish, which led many Americans to believe that morals had been lost during the war and there was a need to return some sense of order, and the LGBTQ+ community was seen as a problem that needed to be fixed. This feeling intensified with the onset of the Cold War and the rise of the Red Scare. The Lavender Scare parallelled the Red Scare — the Lavender Scare targetted homosexuals in government positions, claiming they were more likely to be communist sympathizers. This led to mass skepticism and several queer individuals losing their jobs and having their reputations ruined.
Furthermore, the Lavender Scare was a time when laws regarding the LGBTQ+ community became more stringent meanwhile advocacy for the community’s rights also grew. The Cold War (1960s-1990s) was also a turbulent time for civil rights across various communities: the Chicano Movement and the Civil Rights Movement were underway, and Indigenous Americans were also organizing and advocating. The LGBTQ+ community made legal progress during this time that secured many of the rights exhibited today within the community.
- Stoumen v. Reilly, 1951
- Remember those liquor licenses? Well, in California, several gay bars arose as a way for queer people to still enjoy city nightlife without worrying about bars turning them away. This court case, brought by the Black Cat Restaurant in San Francisco and Mary’s First and Last Chance Bar in Oakland, found that bars could serve queer people after the San Francisco police tried to shut down these establishments on account of violating the Alcoholic Beverage Act. The San Francisco Police Department (SFPD) accused the establishments of being “used as a disorderly house for purposes injurious to public morals.” However, the California Supreme Court ruled that queer people attending a bar or restaurant was not illegal and was, in fact, harmless.
- Comstock Act and the Obscenity Laws: One, Inc. v. Olesen
- In 1958, a case reached the Supreme Court that challenged federal obscenity laws under the Comstock Act. These obscenity laws allowed the US Postal Service (USPS) to censor LGBTQ+ media. The case was One, Inc v. Olesen, which had started in 1953 when a chapter of the Mattachine Society published “ONE: The Homosexual Magazine.” The Los Angeles postal authorities seized the article and stopped its distribution, arguing it violated obscenity laws. This case overturned the USPS’s censorship of the magazine and blocked further censorship of LGBTQ+ media.
- Queer People in Government
- In 1969, the question of whether one’s queerness impeded their ability to hold a government position was finally addressed. In 1969, the DC Circuit Court ruled that federal government employees could not be fired for homosexual conduct. Though this case did not exactly mark the end of the Lavender Scare, as later “Don’t Ask, Don’t Tell” policies and laws that banned transgender people from joining the military pursued, this case did illustrate that the Lavender Scare’s initial smear campaign against queer people would not set the tone for future of the LGBTQ+ community. Instead, queer people would resist and fight for their rights despite the laws and policies made against them.
The Stonewall Riots of 1969 set the stage for the flourishing of LGBTQ+ rights in the decade following. During the ‘70s, members of the LGBTQ+ community got elected to high governmental positions; Kathy Kozachenko, an openly lesbian woman, was elected in 1974 to the Ann Arbor City council, and in the same year, Elaine Noble, who was also openly lesbian, was elected to serve in the Massachusetts House of Representatives. Throughout the ‘70s and early ‘80s, about half of the states in the US repealed their sodomy laws, police harassment of LGBTQ+ bars and restaurants lessened, and laws against cross-dressing were successfully repealed in several major cities across the United States. Furthermore, grassroots organizations are a large part of what made the ‘70s so progressive — the National LGBTQ Task Force, Gay Rights National Lobby, National Coalition of Black Gays and Lesbians, and the Human Rights Campaign Fund — were all founded during this time period. These organizations lobbied for progressive change and spurred legal action after centuries of oppression. Several of these organizations are still active and still help the LGBTQ+ community through legal change.
While it’s not a court case, it is important to note that in 1973, the American Psychiatric Association announced homosexuality was no longer considered a mental illness, and in 1979, the US Public Health Service followed suit. This meant queer people could no longer be legally sent to mental institutions, and it was one of the most impactful actions taken against the old ideology that mental illness caused queerness.
Despite the progress made during the ‘70s, it was a time of push and pull, where colonial-old laws were challenged, but, because of conservative backlash, queer identities were still associated with promiscuity and crime, causing some states to cling to their sodomy laws. The progress made in certain parts of the country scared other states into doubling down on their oppressive laws, and the progression of the ‘70s slowed in the ‘80s and ‘90s. The Lavender Scare did not end; rather, it changed the ways in which it would oppress the LGBTQ+ community.
Furthermore, the progress made in the ‘70s was unfortunately limited to larger metropolitan areas, and conservative groups had made strides in garnering support to repeal LGBTQ+ protective laws in the ‘80s. The AIDS epidemic gave these conservative groups the excuse they were looking for; initially, the LGBTQ+ community, specifically gay men, was blamed for the AIDS epidemic. This led to increased disdain among the majority of Americans against the LGBTQ+ community, and, in turn, sodomy laws that had been previously repealed were reinstated as loitering laws. Furthermore, civil rights laws that had been passed in the ‘70s were repealed in the ‘80s.
The AIDS epidemic, nicknamed the ‘Gay Plague,’ disproportionally targetted the LGBTQ+ community, specifically gay men. Though the epidemic began around 1981, it was not until 1985 that the government addressed the crisis. This response was heavily prompted by activist groups, especially New York City’s AIDS Coalition To Unleash Power, also called ACT UP. Due to ACT UP’s activism, most significantly their nationwide ‘Seize control of the FDA’ demonstration, the FDA sped up its drug approval process and got Medicaid and private health insurance to pay for drug therapies. Had it not been for ACT UP, the AIDS crisis might have gone unchecked for several more years, as homophobic Americans, such as former President Ronald Reagan, believed the AIDS crisis was a punishment for homosexuals for their sexuality and did not want to help victims of the disease.
In the ‘90s, the LGBTQ+ military ban was finally addressed. In 1994, the military adopted the “Don’t Ask, Don’t Tell” policy, which allowed lesbian, gay, or bisexual individuals to enlist in the military, so long as they did not talk about their sexuality, and superiors would not ask about other military members about their sexuality. If it was discovered that a person enlisted in the military was queer, they were discharged. For the time, this measure was considered progressive, and it had many LGBTQ+ supporters. While this measure was still regressive in that it did not outright accept queer individuals to serve, after several years of LGBTQ+ bans, it was a step toward inclusion in the military.
As mentioned earlier, Lawrence v. Texas in 2003 got rid of the sodomy laws in the United States, overturning an earlier case, Bowers v. Hardwick, where the Supreme Court upheld sodomy laws in 1986. This victory was followed by United States v. Windsor in 2013, where the Supreme Court found that the Defense of Marriage Act, an act that denied federal recognition of same-sex marriages, violated the due process guaranteed by the Fifth Amendment. In this case, Thea Spyer and Edith Windsor had gotten married in Canada, and they later moved to New York. When Spyer passed away, she left Windsor her property, but under the Defense of Marriage Act, Windsor was barred from claiming the property and the federal estate tax exemption for surviving spouses. Edith took the case to The Supreme Court, which found that the Defense of Marriage Act infringed on Windsor’s right to life, liberty, and property, as guaranteed by the Fifth Amendment, and therefore declared the act unconstitutional. This landmark case made it so that the federal government had to recognize same-sex marriages as legitimate.
Despite Windsor’s victory and the legalization of same-sex marriage in 2015, the 2010s were not a time of total progress for the LGBTQ+ community. While former President Obama got rid of “Don’t Ask, Don’t Tell” in 2011, instead allowing the LGBTQ+ community to enlist in the military, former President Trump started to roll back this progress. In 2017, the Trump administration banned transgender individuals from enlisting in the military and authorized the military to discharge transgender soldiers. While discharged transgender soldiers would still receive veteran benefits, the Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security explicitly stated that these benefits could not be used for gender reassignment surgery. The memorandum claimed that not allowing veterans medical benefits for gender reassignment surgery was not transphobic because it did not ban only transgender individuals from getting the surgery, it banned all veterans from getting it. How very not transphobic of them.
Furthermore, the LGBTQ+ community still faces discrimination in court. Unfortunately, the gay and trans panic defense are legal tactics that can be used in court cases to justify the murder of LGBTQ+ individuals by their straight, cisgender counterparts. The trans panic defense is a legal maneuver that is used in criminal defense whereby a defendant can claim they acted in a temporarily violent or insane manner because they were unaware the person with whom they were having sexual relations with was transgender. Currently, this tactic is used to justify the murder, assault, or manslaughter of trans individuals. Similarly, the gay panic defense is a legal strategy that defendants can use to claim they were in a temporary state of insanity or violence, causing them to commit assault or murder because of unwanted same-sex advances.
In New York, 2013, James Dixon beat Islan Nettles to death after finding out she was transgender. Dixon used the trans panic defense, claiming he was thrown into a “blind fury” after finding out Nettles was a trans woman. Despite admitting to the crime, Dixon was charged with neither murder nor a hate crime; instead, he got a twelve-year sentence for manslaughter.
The gay and trans panic attack defenses are currently only banned in a minority of states, only 18 out of the 50, and it is still a valid defense to use in court in the other 32 states.
In 2018, another case made its way to the Supreme Court, the Masterpiece Cakeshop v. Colorado Civil Rights Commission, where a gay couple was denied a custom-made cake from Masterpiece Cakeshop because the baker did want to use his creative abilities for homosexuals. In 2012, David Mullins and Charlie Craig went to Masterpiece Cakeshop to get a layered rainbow cake, where each layer would be a different color of the rainbow, with no written message on it. The couple was denied the cake because the baker, Jack Phillips, believed this design went against his religion. The Colorado Civil Rights Commission and the Colorado Court of Appeals both found that this violated the Colorado Anti-Discrimination Act, but the Supreme Court ruled in favor of Phillips, claiming that Colorado had overstepped and a baker should not be forced to use their creative abilities for something they believed to be against their religion. The Supreme Court found that the Colorado Court of Appeals violated Phillips’s First Amendment right and granted Mullins and Craig special privileges.
Unfortunately, LGBTQ+ rights have faced significant backlash in recent times, with one of the latest oppressive pieces of legislation being the “Don’t Say Gay” bill in Florida, which prohibits primary school teachers from discussing sexual orientation or gender identity as of July 2022. Although this bill was implemented under the guise of banning discussion of the LGBTQ+ community in classrooms, its language is broad enough that it encompasses all sexualities and genders, including cisgender heterosexuals, meaning that discussion of any sexuality and gender is banned from classrooms. So while the bill is dubbed the “Don’t Say Gay” bill, it actually bans discussing all sexualities and genders, including straight couples. This ambiguity in the bill has recently faced some backlash from former supporters of the bill, as these supporters did not mean to ban heterosexuality in classrooms.
Furthermore, the bill not only bans students and teachers from discussing their gender and sexuality, but it also bans them from discussing others’ gender and sexuality, including discussion of their families, friends, and all other people. This means teachers can no longer talk about their spouses, regardless of whether the couple is same-sex or not, students cannot talk about their family member’s spouses, and students and teachers cannot talk about anyone’s gender, even if they are cisgender.
While the future of LGBTQ+ rights remains uncertain, there are activist groups working to change discriminatory laws surrounding the queer community, such as the National Center for Lesbian Rights (NCLR). The NCLR is currently challenging Florida’s “Don’t Say Gay” bill, and has filed a lawsuit in federal court against the state.
Although the fight for queer rights continues to be an uphill battle, activists and supporters in the past have demonstrated that it is possible to make change for the greater good, that the LGBTQ+ community will persevere, and that legal bigotry will continue to be challenged until equality is ensured.