AMERICAN CIVIL LIBERTIES UNION
BRIEFING PAPER NUMBER 19
LESBIAN AND GAY RIGHTS
The struggle of lesbians and gay men for equal rights has moved to the
center of the American stage. At no time in our nation's history have gay
people been more visible: Lesbians and gay men are battling for their
civil rights in Congress, in courtrooms and in the streets; well-known
figures are discussing their sexual orientation in public, gay characters
are featured in movies and on prime time television shows. More Americans
today than ever before are aware of the concerns and needs of lesbians and
Historically, our legal system has sought to enforce presumed
cultural and moral norms through laws that dictate what combinations of
individuals may have sex with one another and how. Adultery, for example,
is still a crime in nearly half of the states, and a few states still
criminalize premarital sex. Not until 1967 did the U.S. Supreme Court
strike down "anti-miscegenation laws" criminalizing interracial marriages,
as unconstitutional. This type of government regulation has been
particularly punitive for lesbians and gay men. Sodomy laws, which
invade the intimate realm of sexual expression, have provided the legal
basis for justifying a wide range of discrimination against lesbians and
gay men, in areas from housing and employment to parenting.
The modern movement to end discrimination against lesbians and gay
men began dramatically in June 1969, when the patrons of the Stonewall
Inn, a tavern frequented by gay people in New York City's Greenwich
Village, fought back against police violence during a raid. Using the
same strategies of grass-roots activism and litigation used by other 20th
century movements for social change, the nationwide movement spawned by
the Stonewall rebellion has achieved significant progress. After two
decades of struggle:
> Sodomy laws that previously existed in all 50 states now exist in only
> eight states, the District of Columbia and over 100 municipalities ban
discrimination based on sexual orientation in employment, housing and
public accommodations, and
> dozens of municipalities and many more private institutions, including
some of the country's largest corporations and universities, have
"domestic partnership" programs that recognize and accord various
benefits, such as health insurance coverage, to gay and lesbian partners.
But as lesbians and gay men have become empowered, and issues
concerning them have gained national attention, anti-gay hostility has
become more open and virulent.
Sexual orientation, although unrelated to an individual's ability,
is still the basis for employment decisions in both the public and private
State and local ordinances aimed at blocking equal rights for gay
people are proliferating nationwide.
A homophobic backlash has sparked a dramatic rise in "hate crimes"
against gay people or those perceived to be gay, including murder -- for
example, a 127 percent rise in five major cities that keep anti-gay
violence records between 1988 and 1993.
Millions of Americans are still denied equality, including custody
of their children, and access to housing and public accommodations because
they are openly lesbian or gay or are so perceived.
Gay organizations on college campuses are denied official
recognition, access to funding and campus services.
The federal government continues its tradition of sanctioning
anti-gay bigotry, which led, in the late 1940s and 1950s McCarthy-era, to
the firing of at least 1,700 federal workers who were suspected of being
lesbian or gay and were branded "perverts" an d "subversives." Today, the
government maintains discriminatory policies in, among other areas, the
military and in access to security clearances.
In 1986, after more than two decades of support for lesbian and
gay struggles, the American Civil Liberties Union (ACLU) established a
national Lesbian and Gay Rights Project to coordinate the nation's most
extensive program advocating equal rights for lesbians and gay men. The
ACLU's work for the rest of the decade is cut out: Well-organized and
well-funded radical right-wingers and religious fundamentalists have
pledged that "gay rights will be the `abortion' issue of the 1990s" --
meaning that the gay community's every advance towards equality will be
Here are the ACLU's answers to some questions frequently asked by
the public about the rights of lesbians and gay
What is the constitutional basis for lesbian and gay rights? The struggle
for legal equality for lesbians and gay men rests on several fundamental
Equal protection of the law is guaranteed by the Fifth and Fourteenth
Amendments and reinforced by hundreds of local, state and federal civil
rights laws. Although the Fourteenth Amendment, ratified at the end of
the Civil War, was originally intended to ensure full legal equality for
African Americans, courts have interpreted the Equal Protection Clause to
prohibit discrimination on other bases as well, such as gender, religion
The right to privacy, or "the right to be left alone," is
guaranteed by the Fourth, Fifth, Ninth and Fourteenth Amendments and
further secured by a series of Supreme Court rulings: In 1965, the
landmark Griswold v. Connecticut struck down a state law that prohibited
even married couples from obtaining contraceptives, citing "zones of
privacy" into which the government cannot intrude; in 1967, Loving v.
Virginia decriminalized interracial marriage; in 1972, Eisenstadt v. Baird
recognized unmarried persons ' right to use contraceptives, and in 1973,
Roe v. Wade recognized women's right to terminate pregnancy.
Freedom of speech and association are protected under the First
Amendment and include the rights to form social and political
organizations, to socialize in bars and restaurants, to march or protest
peacefully, to produce works of art or popular culture with homosexual
themes and to speak out publicly about lesbian and gay issues.
What exactly do sodomy statutes prohibit? Sodomy statutes generally
prohibit oral and anal sex, even between consenting adults in the privacy
of their homes. "Sodomy" is variously referred to as "deviate sexual
intercourse," "a crime against nature" or "unnatural or perverted sexual
practice." The language of some statutes is extremely vague and
subjective. Michigan, for example, outlaws "gross lewdness" and "gross
indecency." Penalties for violating sodomy laws range from a $200 fine to
20 years imprisonment. In most of the 23 states that s till retain
consensual sodomy statutes, these laws apply to both homosexual and
heterosexual sex. However, six states limit the laws' application to
same-sex couples. The primary effect of sodomy laws is to sanction
discrimination against lesbian and gay male sex.
What has the Supreme Court said about sodomy laws? Sodomy laws invade one
of the sexual "zones of privacy" defined by the Supreme Court in 1965.
But unfortunately, the Court ignored its own standard in 1986 by upholding
the constitutionality of Georgia's sodomy law. Bowers v. Hardwick
involved an Atlanta resident who was arrested when a police officer
entered his home and found him in bed with another man. Stating that a
majority of Georgians regarded homosexuality as immoral, the Court ruled
that the constitutional right to privacy did not prevent states from
Justice Harry A. Blackmun, representing four Justices, dissented
sharply and forcefully. "[W]hat the Court really has refused to
recognize," he wrote, "is the fundamental interest all individuals have in
controlling the nature of their intimate associations with others." Four
years later, Justice Lewis F. Powell, who had provided the decision's
swing vote, stated publicly that he regretted having voted to uphold
Why is it necessary to seek repeal of sodomy laws when they are so rarely
Though infrequently enforced, consensual sodomy laws can be used
against gay people for as long as they remain on the books, as illustrated
by the Hardwick case. Thus, even their occasional use is a good reason to
seek repeal. Moreover, such statutes a re the cornerstone of the
oppression of lesbians and gay men: By criminalizing lesbian and gay sex,
sodomy laws institutionalize the concept that gay people are by nature
outlaws, and that their mistreatment by government and society is,
The Supreme Court decision in Hardwick was a disappointing
setback, but the effort to achieve equality for lesbians and gay men has
since continued on the state level. Indeed, that effort has met with some
success. Courts in Kentucky, Michigan and Texas have declared sodomy
laws unconstitutional under their state constitutions' guarantees of
privacy and equal protection. In Kentucky v. Wasson, the Kentucky Supreme
"...we hold the guarantees of individual liberty provided in our 1891
Kentucky Constitution offer greater protection of the right to privacy
than provided by the Federal Constitution as interpreted by the U.S.
Supreme Court, and that the statute in quest ion [prohibiting `deviate
sexual intercourse'] is a violation of such rights.
The fight to repeal sodomy laws will continue, in both
legislatures and the courts, until such laws have been consigned to
history in every state.
Are gay men and lesbians specifically protected anywhere in the country?
Yes, eight states (California, Connecticut, Hawaii, Massachusetts,
Minnesota, New Jersey, Vermont and Wisconsin), the District of Columbia
and more than 100 municipalities have enacted laws that protect gay people
from employment discrimination. But in most locales in 43 states, such
discrimination remains perfectly legal.
Every year, thousands of Americans are denied job opportunities
and denied access to housing, restaurants, hotels and other public
accommodations simply because they are gay or lesbian or are perceived to
be so. Businesses openly fire lesbian and gay employees, many states
maintain policies that exclude gay people from certain positions and even
the federal government maintains discriminatory employment policies.
The best way to redress pervasive discrimination against lesbians
and gay men is to amend all existing federal civil rights laws to ban
discrimination based on sexual orientation in employment, housing, public
accommodations, public facilities and federally assisted programs. The
ACLU, through its Lesbian and Gay Rights Project, is working tirelessly to
attain that goal.
Aren't lesbians and gay men demanding special rights and preferential
Absolutely not. The gay community is demanding equal rights, not
more or different rights than other Americans. Equal rights include the
right to live free from persecution and violence based on sexual
The misleading term, "special rights," is used by those who hope
to perpetuate discrimination against lesbians and gay men. For example,
it was used successfully in November 1992 to convince a majority of
Colorado voters that they should enact a state constitutional amendment
-- called Amendment 2 -- repealing all existing gay rights laws and
barring any future enactment of such laws.
What most Americans do not realize is that the many lesbians and
gay men who face discrimination have no legal recourse: Federal law does
not prohibit discrimination against gay people, and only a handful of
states do. Therefore, laws prohibiting discrimination on the basis of
sexual orientation are merely intended to provide equal rights -- to level
the playing field so that lesbians and gay men will be judged according to
their abilities, not based on their sexual orientation.
Do any states recognize gay marriage?
Not yet. But more than two dozen cities, including New York, Los
Angeles, San Francisco, Seattle and Minneapolis, have enacted "domestic
partnership" ordinances that provide legal recognition for both
heterosexual and homosexual unmarried cohabitors who register with the
city. These ordinances, while not conferring all of the rights and
responsibilities of marriage, generally grant registered partners some of
the economic benefits accorded to married couples -- typically, sick and
bereavement leave and insurance and survivorship benefits for city
Why does the ACLU support gay marriage?
Lesbian and gay couples experience the law's hostility to their
intimate relationships as a blatant enforcement of their status as
To deny their relationships full legal recognition is to unfairly
deprive lesbians and gay men of benefits that married heterosexuals take
for granted. For example, married people automatically enjoy certain tax
advantages; they can inherit property fro m one another without a will;
one spouse can recover damages for the wrongful death of the other; they
can adopt children more easily than singles can. Employers often extend
health insurance, pension and other benefits on the basis of marital
status. Thus, practically speaking, lesbians and gay men cannot achieve
complete equality in American society until the government officially
recognizes their relationships.
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