Judicial activism and progressive legislation: a step towards decreasing hate attacks.

• Author: Bantley, Kathleen A.

1. INTRODUCTION

   Over the last several years, the issue of gay and lesbian rights has been a political hot topic. The area that has drawn the most attention lately is in the realm of civil unions and marriage. Vermont and Connecticut have passed civil union legislation increasing the rights of gays and lesbians. (1) Massachusetts went one step further. It actually permits gay marriage. In 2003 the Massachusetts Supreme Judicial Court (SJC), in Goodridge v. Department of Public Health, ruled that the state's constitution does not prevent same-sex couples from marrying. (2) In the wake of the SJC's opinion, the Massachusetts legislature introduced possible constitutional amendments defining marriage as between a man and a woman only. (3) In the meantime, same-sex couples began to marry starting in May 2004. (4) By December 2005 a total of 7,341 same-sex couples had been married in Massachusetts. (5)

   Other states have done the opposite. They have limited the rights of gays and lesbians by passing amendments to their state constitutions, which define marriage as between a man and woman only. (6) This makes it virtually impossible for homosexuals to be on equal footing with their heterosexual counterparts.

   This Article focuses on the impact that judicial decisions, such as the Goodridge opinion, and legislative acts increasing the rights of gays and lesbians have on "hate crimes." In determining this impact, the Article will examine the historical treatment of gays and lesbians and anti-gay violence. It will also look at heterosexism and the Defense of Marriage Act, hate crime legislation, hate crime statistics, and hate attacks nationally and specifically in Vermont and Massachusetts.

2. HISTORICAL TREATMENT OF GAYS AND LESBIANS

   Gays and lesbians in the United States, historically, have not been treated well. Starting as early as the colonial era, one could be executed by the government for sodomy. (7) By the mid-twentieth century, the medical profession began considering homosexuality a mental illness. (8) As such, many gays and lesbians were in fear of being institutionalized. (9) In the 1940s and 1950s, the federal government started to openly treat homosexuals adversely. (10) Congress dealt with homosexuals through the House UnAmerican Activities Committee and the Senate's McCarthy Hearings. (11) Homosexuals were considered a national menace, a threat to national security, and a threat to the stability of the country. (12)

   Congress, however, was not the only branch of the federal government that treated homosexuals poorly. President Dwight Eisenhower "issued an executive order listing 'sexual perversion' as disqualifying anyone from a federal job." (13) This prompted J. Edgar Hoover and the FBI to lead a "national crackdown" on outing homosexuals. (14) At that time, the federal government was the nation's largest employer. (15) It was believed that homosexuals were easy targets of blackmail and could be coerced into revealing national secrets or joining the communist party. (16)

   As a result of this crackdown, it became open season on homosexuals. This overt discrimination by the federal government led to more and more private discrimination. Private employers followed Eisenhower's lead and started firing anyone they believed was homosexual. (17) In addition, police across the country started to act as if they had been given a '"no-holds-barred' signal to harass, abuse and arrest homosexuals." (18) They would blackmail, entrap, and commit other abuses on them. (19) The police traditionally have been violators of gay and lesbian civil rights. (20) As such, attacks on gays and lesbians had gone unreported because victims actually experienced or perceived the police to be anti-gay. (21) This was the climate and the catalyst for the Stonewall Riots of 1969. (22) During these riots, members of the gay community fought back against the New York City Police who were constantly harassing patrons of gay bars. (23) The riots lasted three days and served as the springboard to the Gay Liberation Movement. (24) The movement focused on issues such as ending police abuse, discrimination in housing and employment, and repealing sodomy laws. (25)

   Finally in 1973, the American Psychiatric Association removed homosexuality from its list of psychological disorders. (26) This helped to reduce the stigma that homosexuals were "sick." The stigma, however, had many negative effects ranging from mild verbal assaults to harsh physical attacks. (27)

   Unfortunately, the American Psychiatric Association's reclassification of homosexuality did not end discrimination against homosexuals. Some strides, however, have been made. Many states now prohibit both public and private employers from discrimination based on sexual orientation. (28) Federal employees are also protected through an executive order. (29)

   In addition to anti-discrimination laws in the employment arena, many other states have added sexual orientation to their hate crime statutes. (30) They have expanded upon the traditional categories of race, ethnicity, religion, and disability.

   Some states have gone even further to increase the rights of gays and lesbians. Three states recognize homosexual relationships similarly to heterosexual marriages. Two are in the form of civil unions (Vermont and Connecticut) and one (Massachusetts) actually allows marriage. (31)

   Finally in 2003, the United States Supreme Court ruled that homosexuals have a right to liberty under the Due Process Clause to engage in consensual conduct in the privacy of their own home without intervention of the government. (32)

3. VICTIMIZATION

   Gays and lesbians have always had to endure violence against them, whether at the hands of law enforcement or private citizens. When people think of anti-gay violence, most think of personal attacks.

   Kuehnle and Sullivan did a descriptive study investigating antigay victimization and reporting practices in 2001. (33) They examined self-reported incidents to a victim program from a large northeastern city from January 1995 through September 1998. (34) The analysis included 241 incidents. The gender identity in this study involved 179 males, fifty-two females, and ten transgendered individuals. (35) Nearly 50% of the incidents involved a serious personal offense, and 39.4% involved other personal offenses, such as attempted assault and harassment. (36)

   Herek, Cogan, and Gillis interviewed 450 volunteers from a group of 2,259 sexual-minority adults from the Sacramento, California area. (37) One of the questions they asked focused on "the varieties of hate crime victimization experienced by sexual minorities." (38) The responses "ranged from harassment and threats to physical assault." (39) One of the interviewees mentioned the murder of a friend. (40)

   In addition to these direct attacks of violence or harassment, gays and lesbians also face secondary discrimination. Berrill and Herek describe secondary discrimination as the negative treatment a victim receives when others, such as family members or employers, learn of the victim's sexual orientation. (41) Examples the authors used for this treatment are "loss of employment, eviction from housing, denial of public accommodations, and loss of child custody." (42) The authors go further and state that the government's action or inaction toward secondary discrimination conveys the message to "perpetrators ... and the rest of society that anti-gay hate crimes will not [go] punished and that secondary victimization of gay people is acceptable." (43) If this is true, then one could speculate that as long as the government continues to allow homosexuals to be treated differently than heterosexuals, acts of violence against gays and lesbians shall not decrease.

4. HETEROSEXISM AND THE INSTITUTIONALIZATION OF HATE

   1. Institutionalization of Hate

      As time progressed, hate and violence started to become institutionalized in American culture. (44) Homosexuals would face felony imprisonment under sodomy statutes (unlike their heterosexual counterparts), forced psychiatric treatment, and termination from employment. (45) Moreover, in the wake of harsh treatment by law enforcement, homosexuals were and still are reluctant to report the attacks on them. (46) This reluctance could go as far as acting as a motivating factor for gays and lesbians to hide their victim status because of the perceived lack of support among law enforcement and the general public. (47)

   2. Heterosexism

      Heterosexism is '"an ideological system that denies, denigrates, and stigmatizes any non-heterosexual form of behavior, identity, relationship, or community.'" (48) One cannot turn a blind eye on this definition when examining the legal system. There are many examples of where it exists.

      1. Sodomy

         The most striking area of unequal treatment for homosexuals was in the application of criminal sodomy statutes. Sexual behavior has always been regulated to some degree. We have had laws punishing people for fornication, adultery, prostitution, and solicitation. Sodomy laws just followed suit. By 1961 all fifty states had some type of criminal sodomy statute. (49) In 1986 when the infamous Bowers v. Hardwick case was decided, twenty-four states and the District of Columbia had sodomy statutes. (50)

         In Bowers, a police officer observed Mr. Hardwick engaging in a consensual sexual act with another adult male. This act occurred in...