On June 15, 2020 the Supreme Court of the United States ruled that employer discrimination
on the basis of sexual orientation or gender identity is illegal under Title VII of the
Civil Rights Act of 1964.
The court’s ruling was based on the fact that Title VII says it’s “unlawful . . . for
an employer to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual . . . because of such individual’s race, color, religion,
sex, or national origin.” and the Supreme Court’s decision (written by Justice Gorsuch)
noted that, “It is impossible to discriminate against a person for being homosexual or transgender
without discriminating against that individual based on sex.”
The decision marked a landmark change in US discrimination law as it relates to LGBTQ+
communities.
Although the modern LGBTQ rights movement dates back to the mid 20th century in the
US, the history of anti-LGBTQ law stretches further back, to the foundations of this country.
So today we’re going to analyze that history and see the decisions and activism that eventually
led to greater legal acceptance of queer communities nationwide.
In order to get there, first we’ll look at the colonial history of anti LGBTQ law.
Next we’ll analyze how these laws continued up until the 20th century.
And finally we’ll analyze key court cases and legislation that helped to overturn pre-existing
anti-gay laws in the US.
In our last episode on legal discrimination “The racist origins of US law” we covered
the history of anti-Black racism in the US.
Today we’re going to open up the lens to explore how legal bias has applied to other
groups, namely LGBTQ+ communities in the US.
By expanding our scope of legal discrimination, we’ll gain a greater understanding of the
ways that laws can be manipulated to favor certain groups over others.
In short it goes something like this: rates of punishment don’t always correspond to
rates of crime.
Governments decide on what type and quantity of punishment is appropriate based on the
laws that were broken.
But just like laws are subjective, so are punishments.
And they are both in line with the moral sensibilities of a society at a given moment in time, rather
than an objective view of right and wrong.
So many of the laws and punishments we discuss today are no longer in line with the majority
of our moral sensibilities as a society.
But when they were passed and enforced, they represented the common conception of what
should be considered illegal.
The earliest reported instances of legal discrimination against LGBTQ people in the Americas stretches
back hundreds of years to colonialism.
But before we dive into these accounts, it’s important to remember a few key facts.
Who is telling the story is really important here.
These colonial accounts of homosexuality were written from the perspective of early colonists
who were attempting to conquer and subjugate the native people of North America.
Therefore they had a vested interest in deeming the cultures that were already inhabiting
North America as incapable of self-governance.
And because there were laws already established in Western Europe that outlawed homosexuality
and “sodomy” these early detailed accounts of homosexuality may have been either misreported
or exaggerated in order to justify colonial aggression.
In effect, early colonists may have created “crimes” in order to rationalize their
persistent and sustained abuse of Native Americans and enslaved Africans.
On the other hand, we can still glean information about the ways that the law has always been
predisposed to criminalize same sex relationships as “deviant” and those who engage in anything
other than heterosexuality as “criminal.”
In Queer (In)Justice: The Criminalization of LGBT People in the United States, the editors
( Joey L Mogul, Andrea J Ritchie, and Kay Whitlock) recount some of these early colonial
accounts of queer life and the violence that was metted out to people who did not conform.
They open their text with what is believed to be the first recorded instance of Spanish
punishment for homosexuality in North America.
In 1513 conquistador Vasco Nunez de Balboa sentenced forty men in current day Panama
to be thrown to his hunting dogs and dismembered because he claimed to witness them “dressed
as women” and engaging in sex with other men.
They go on to detail how early Christian historians and conquerors to Central America, South America
and the Caribbean detailed numerous instances of gay sex, and people dressing in gender
fluid clothing as a way to rationalize what they did: penalize, persecute and often kill
Native Americans.
Similarly, charges of sexual impropriety were also often made against recently enslaved
Africans to justify brutal treatment and abuse.
Although this initial example is one that is particularly brutal, it also reflects a
longer and larger history of anti-gay laws in the Americas and the later established
United States.
In his book Dishonorable Passions: Sodomy Laws in America 1861-2003 Professor William
N. Eskridge Jr. details the complete history of “sodomy laws” or the “crime against
nature” in the United States.
That was a euphemism for a group of anti-sex laws (which were often, although not always,
anti-gay) that were on the books until as late as 2003.
Eskridge writes:
However ill-defined, the crime against nature was a cornerstone of the Anglo-American legal
regime regulating sexuality.
From the sixteenth to the twentieth century, the norm reflected in that regime was procreative
marriage.
Adultery and fornication laws insisted that sexual activities occur only within marriage;
sodomy and seduction laws insisted that the sex be procreative.
The vagueness of the crime against nature and its central role in this normative regime,
rendered it elastic and mobile, so that it might include other non procreative sexual
activities.
As Eskridge notes, it was the fluidity and undefined nature of these laws that made them
so pervasive.
Soon a range of behaviors was swept under the broad umbrella of these laws, which Eskridge
traces back to Judeo-Christian and Puritanical sensibilities from the 17th century.
However over time they crystallized into explicitly anti-homosexuality laws by the late 19th century.
By the 20th century these laws began to target specific populations, responding directly
to fears about “improper” sex and sexuality that was either non procreative or crossed
racial divides.
Eskridge writes that:
Diversified urbanization also meant that more Americans were exposed to a wide variety of
sexual couplings, which alarmed them and motivated them to establish strong boundaries separating
moral from immoral activities.
Particularly disturbing were different-race, same-sex, and intergenerational couplings,
all of which crossed hallowed cultural lines.
Between 1890 and 1950 alarmed citizens petitioned their state and local governments to create
a detailed regulatory system of sexual line drawing.
Although the code they demanded was novel in most respects, the petitioners presented
it as a return to old-fashioned moral values.
As a result, laws become more and more targeted at gay people and the police were used to
enforce these new laws.
Dr. Eric Cervini talks about the police apparatus that was put in place during the early 20th
century to regulate gay sexuality.
He describes police undercover sting operations that took place across the United States in
the mid 20th century in his book The Deviant’s War: The Homosexual vs. The United States
of America.
These stings could involve undercover officers and informants who were placed in popular
gay “cruising” spots or raids of gay bars and establishments.
The result was a spate of arrests and prosecutions of gay Americans.
But the increase in the surveillance of gay communities and the expanded enforcement of
anti-gay laws was not met without resistance in the 20th century.
Just like the modern civil rights movement of the 1950s and 1960s, gay rights advocates
began to take their pursuit of equality into the courtroom.
And by doing so, they changed the course of US history.
In From the Closet to the Courtroom: Five LGBT Rights Lawsuits That Have Changed Our
Nation, Professors Carlos A. Ball and Michael Bronski make the connection between the legal
strategies of the Civil Rights movement and the modern LGBTQ+ movement when they write:
In both instances, a group of attorneys, carefully and methodically, used the courts to advance
the interests of a marginalized group in ways that fundamentally changed society.
LGBT rights lawyers, like their earlier civil rights counterparts, have successfully used
litigation as a means to promote greater equality and freedom for the members of the communities
they serve.
What followed were some landmark cases aimed at changing the shape of American law to make
it more just and inclusive.
Take for example one of the earliest Supreme Court cases dealing with gay rights issues,
1958’s One, Inc vs Olesen.
The court found that One, Inc, the publisher of a gay magazine, was protected under the
first amendment.
Previously the US postal service had objected to mailing the magazine, claiming that it
was obscene and therefore couldn’t be mailed under the Comstock laws (which prohibited
certain items from being sent in the mail.)
But not every early case was a victory, in fact it was something of a mixed batch.
Later gay rights legal battles inlcuded:
1972’s Baker v. Nelson, in which partners Jack Baker and Michael McConnell initially
took their marriage equality case to the Minnesota Supreme Court in 1971 before appearing before
the Supreme Court the next year.
Minnesota’s Supreme Court found there was nothing unconstitutional in denying same sex
couples marriage licenses and the supreme court didn’t hear arguments in the case,
stating that it was not “a substantial federal question.”
1986’s Bowers v. Hardwick upheld Georgia’s sodomy laws.
1996’s Romer v. Evans struck down a Colorado amendment banning cities from enacting anti-discirimination
laws to protect gay and bisexual people.
In 2003 Lawrence v. Texas finally ended all sodomy laws nationwide, reversing the 1986
Bowers v Hardwick ruling.
And in 2015 Obergefell v. Hodges finally brought an end to same sex marriage bans nationwide,
bringing marriage equality for LGBTQ people across the country, although challenges still
remain to this day.
Clearly the courts played a pivotal role in the reversal of unjust laws and legal discrimination
for queer people nationwide, although legislation and activism also played a key role in changing
social attitudes.
However both social and legal challenges remain to this day for LGBTQ+ people and the struggle
continues in the fight for greater recognition and equality.
That wraps up our second episode on the history of legal discrimination in the US.
But as I mentioned in episode one this is only the beginning of analyzing and unpacking
the multiple ways that US law was written with prejudice and bias.
If we’ve learned anything from these two episodes it’s that the law is an ever changing
entity and not a monolith.
It’s powered by the attitudes, beliefs and actions of a society at a given point in time.
That means that just as it’s possible for laws to be unjust it’s equally possible
to resist, fight back and change legislation when the need arises.