Gay and Lesbian Rights

Author:Jeffrey Lehman, Shirelle Phelps

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The goal of full legal and social equality for gay men and lesbians sought by the gay movement in the United States and other Western countries.

The term gay originally derived from slang, but it has gained wide acceptance in recent years, and many people who are sexually attracted to others of the same sex prefer it to the older and more clinical term homosexual. The drive for legal and social equality represents one aspect of a broader gay and lesbian movement that, since the late 1960s, has worked to change attitudes toward homosexuality, develop gay community institutions, and improve the self-image of gay men and lesbians.

Although homosexuality has been recorded in every historical period and culture, the gay and lesbian rights movement developed only with the emergence of a self-conscious, gayidentified subculture that was willing to openly assert its demands for equality. Until the 1960s, virtually all lesbians and gay men were secretive about their sexual orientation and frequently shared the attitude of the general society that homosexuality was sick, sinful, or both. The phrase "in the closet" refers to gay men and lesbians who hide their sexual orientation.

The first national gay organizations in the United States were the Mattachine Society (1951) and the Daughters of Bilitis (1956). The emergence of the CIVIL RIGHTS MOVEMENT of the 1960s energized gay and lesbian groups, and the development of the women's movement of the late 1960s made explicit the link between political activities and personal identity.

The watershed moment for gay men and lesbians occurred in 1969 when the patrons of the Stonewall Inn, a gay bar in New York City's Greenwich Village, forcefully resisted arrest by city police officers who had raided the bar. Stonewall became a symbol for a new set of attitudes on the part of younger gay men and lesbians who resisted discrimination and negative stereotyping. As gay men and lesbians became more open and decided to "come out of the closet," U.S. society was challenged to question assumptions about homosexuality.

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Though most gay and lesbian rights activity remains local, national organizations such as the National Gay Task Force, the Lambda Defense and Education Fund, and the Human Rights Campaign have played a significant role in challenging discriminatory treatment. For example, in 1974, the National Gay Task Force successfully lobbied the American Psychiatric Association to remove homosexuality from its list of mental disorders.

The recognition of gay and lesbian rights has been accomplished through both court challenges and legislative action. The ability of gay and lesbian organizations to make significant financial contributions to political candidates has helped lead to more sympathetic hearings in the legislative arena.

Criminal Prohibitions on Sexual Activity

Most gay men and lesbians remained in the closet until the modern movement for equality because homosexual behavior has been a crime throughout U.S. history. Homosexual activity includes anal sex and oral sex, which have been labeled SODOMY. Criminal laws against sodomy date from the colonial period, when a conviction for a "crime against nature" could lead to a death sentence. Although few if any people have ever been executed for sodomy, the penalties for this crime have remained heavy, and the act is as of 2003 classified as a felony in states that have sodomy statutes (Arkansas, however, classified sodomy as a Class A misdemeanor).

Advocates of gay and lesbian rights have made the repeal of sodomy statutes a leading goal. Twenty-seven states have repealed these statutes, usually as part of a general revision of the criminal code and with the recognition that heterosexuals as well as homosexuals engage in oral and anal sex.

The Supreme Court has found that state laws prohibiting homosexual sodomy are not unconstitutional. In Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986), the Court upheld the Georgia sodomy statute (Ga. Code Ann. § 16-6-2 [1984]). Michael Hard-wick was arrested and charged with committing sodomy with a consenting male adult in the privacy of his home. Although the state prosecutor declined to prosecute the case, Hardwick brought suit in federal court, seeking a declaration that the statute was unconstitutional.

The Court rejected the argument that previous decisions such as the Court's rulings on ABORTION and contraception had created a right of privacy that extends to homosexual activity. The Court also rejected the argument that a fundamental right to engage in homosexual activity can be found in the DUE PROCESS CLAUSES of the Fifth and Fourteenth Amendments. To the argument that homosexual activity should be protected when it occurs in the privacy of a home, Justice BYRON R. WHITE, writing for the majority, said that "otherwise illegal conduct is not always immunized whenever it occurs in the home." For example, the possession of drugs or stolen goods is not protected because it occurs at home.

Hardwick was a setback to the gay and lesbian rights movement, as it allowed opponents to argue that it was absurd to grant CIVIL RIGHTS to persons who engage in criminal acts.

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

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

Antidiscrimination Laws

Advocates of gay and lesbian rights have sought the passage of legislation that prohibits discrimination in employment, housing, public

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accommodations, or public service on the basis of sexual orientation. Many U.S. cities have passed gay rights ordinances that accomplish these objectives. In 1982, Wisconsin became the first state to pass gay rights legislation.

At the national level, gay men and lesbians fought legal battles in the 1980s and 1990s to allow them to serve in the ARMED SERVICES. A series of lawsuits were filed that sought to over-turn military regulations that mandated discharge for disclosing a homosexual orientation.

In Meinhold v. United States Department of Defense, 34 F.3d 1469 (9th Cir. 1994), a three-judge panel ruled that Petty Officer Keith Mein-hold, of the U.S. Navy, could not be discharged for stating on a national television broadcast that he was gay. In the discharge proceedings, the Navy had taken the position that Meinhold should be discharged even though the Navy had not proved that Meinhold had committed any act of homosexual conduct.

The Ninth Circuit Court of Appeals concluded that a Navy policy against homosexual conduct was constitutional, as it was based on the Navy's professional judgment that homosexual conduct "seriously impairs the accomplishment of the military mission." However, the court of appeals ruled that Meinhold's statement that he was gay was not grounds for discharge. In the court's view, Meinhold had not demonstrated "a concrete, expressed desire to commit homosexual acts." Thus, the focus for the armed services must be on prohibited conduct and persons who are likely to engage in prohibited conduct.

The issue moved into the political arena following President Bill Clinton's election in November 1992. Clinton promised to honor his campaign pledge to exercise his authority as commander in chief of the armed forces and remove the military ban against gays. But the Joint Chiefs of Staff, headed by General Colin L. Powell, and many other senior Pentagon officers strenuously objected to Clinton's plan, claiming that ending the ban would interfere with military order, discipline, and morale. Led by Senator Sam Nunn (D-GA), chairman of the powerful Armed Services Committee, Congress demanded an opportunity to comment on the policy.

Faced with increasing pressure at the beginning of his administration, Clinton agreed to a six-month delay in lifting the ban. He agreed to

Keith Meinhold was reinstated in the U.S. Navy in 1993 following a Ninth Circuit Court ruling that he could not be discharged for stating on a national television broadcast that he was gay.


establish a temporary policy developed by Nunn, and issued a directive ordering the military to stop asking new recruits about their sexual orientation; stop investigations to ferret out gays in uniform; and suspend current cases seeking to discharge gays, as long as those cases were based solely on homosexual...

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