Sex and sexuality are fundamental aspects of human nature. From the dawn of time, individuals who identify as gay, lesbian, bisexual, or transgender have been an integral part of society. Despite this, LGBT Americans have faced persistent misunderstanding and discrimination. In their quest for equal rights, they have fought tirelessly – even taking their cases all the way to the Supreme Court. As part of “We the People,” they have sought full inclusion and the right to pursue happiness. The struggle for equality continues, but the unwavering spirit of the LGBT community ensures that progress will be made.
Protest and Free Expression
Gays and lesbians have been present along with bisexuals and trans people from ancient times. Many societies, including the Ancient Greeks and Native American cultures, have recognized the complexity of human sexuality and gender. But, discrimination continued to be the norm.
The 1950s in the United States was a period of post-war conservatism and gays went further into the proverbial “closet” (hiding).
However, some began to speak out and protest, including when being a homosexual could result in losing your job and government security privileges.
Civil Liberties for All
Discrimination also led to efforts to defend civil liberties, particularly involving the rights of African Americans. The Supreme Court began to spend more time protecting civil liberties. One of the first gay rights victories is a little-known case in the 1950s (One, Inc. v. Olesen) protecting a gay publication deemed obscene.
Gays and lesbians benefited from the expansion of protection of civil liberties at the Supreme Court. They were slowly able to openly meet in public places, form clubs at high schools and colleges, and openly protest against injustices.
These basic rights, which many people took for granted, began to be enjoyed by gays and lesbians as well.
Ironically, the same freedoms applied to groups who kept gays out of St. Patrick’s Day parades or kept gays from being scout leaders at the Boy Scouts. The same freedom of association rights applied in those cases, with the Supreme Court saying so in two major cases.
Privacy and Equality Rights
Gays and lesbians benefited from the Supreme Court protecting privacy rights, the right of each person to make intimate decisions.
The sexual revolution in the 1960s expanded the acceptance of different types of relationships and this was reflected in Supreme Court decisions protecting contraceptives and abortion rights. The Supreme Court also handed down many rulings against sex discrimination, opposing stereotypical views of the “proper” roles of men and women.
There was a growing understanding that there are various means of self-expression.
Step Back
The Age of Aquarius, to use a label from a song honoring the 1960s, did not last.
The United States shifted conservative in the 1970s, reflected by such things as the failure of the ratification of the ERA (women’s rights) and the election of Ronald Reagan.
The 1980s also brought the AIDS epidemic, causing much hardship to the gay community. It helped advance a backlash against the liberalization of views on gays and lesbians. This was reflected by the Supreme Court denying a request to apply privacy rights to gay couples in the Bowers v. Hardwick (1986) ruling, so-called “same-sex sodomy” denied protection.
Nonetheless, in various ways, the country continued to accept gay and lesbian people, who continued to have relationships, form families, and be part of society.
Discrimination and Supreme Court Reaction
The Supreme Court in Romer v. Evans (1996) put some limits on how far LGBT (Lesbian, Gay, Bisexual, and Trans) people could be discriminated against.
Colorado, responding to some local gay rights legislation, passed a statewide measure broadly preventing protections based on homosexual, lesbian, and bisexual status. The Supreme Court (6-3) found this a wrong-minded approach:
Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.
Justice Anthony Kennedy, who became the voice on the Supreme Court in support of gay rights, argued the measure showed an illegitimate animus (dislike) and everyone deserved a basic level of equal protection. Kennedy would in 2003 also write Lawrence v. Texas, which overruled Bowers. Same-sex couples were found to have the same privacy rights as everyone else.
Anthony Kennedy was the third choice in a contentious battle for a key swing vote on the Supreme Court. His confirmation brought a conservative voice that was still liberal and libertarian on certain issues, including privacy rights and free speech concerns.
Same-Sex Marriage
Gays and lesbians have had long-term relationships since ancient times. Society has respected their right to do so in various respects. But, the United States did not recognize a right for same-sex couples to marry with all the legal benefits that brings.
People could marry in private ceremonies but were not able to get a license. This was deemed only for men and women.
In the 1990s, a legal dispute in Hawaii seemed to suggest that the state would protect the right of same-sex couples to marry. The state eventually changed its laws to prevent this.
A few years later, Vermont recognized “domestic partnerships” (having most rights of marriage) but not marriages for same-sex couples. Massachusetts, in 2003, became the first state to recognize full-fledged marriage rights for same-sex couples.
Backlash to Same-Sex Marriage
The beginning of recognition of same-sex marriages led to backlash. The federal government passed the so-called Defense of Marriage Act (DOMA), which denied federal benefits to any same-sex marriage.
In the Jim Crow Era, Congress did not find it necessary to deny federal benefits to those states that allowed interracial marriages.
Edie Windsor and Thea Spyer had a personal relationship they accepted as a sort of marriage since the 1960s. They received some marriage-type “domestic partnership” benefits in New York City in 1993.
They married in Canada in 2007 and New York recognized their marriage.
But, when Spyer died, Windsor did not receive federal tax benefits that a woman married to a man would have received. This resulted in a heavy tax bill and she sued. The Obama Administration agreed that this was unconstitutional discrimination.
And, the Supreme Court agreed as well. It found selectively denying federal benefits to same-sex couples in states that recognized them unconstitutional.
The path to a full constitutional right of same-sex marriage was clear. Lower court after lower court applied the Windsor ruling to protect same-sex marriage.
And, the Supreme Court, in a very divisive (Chief Justice John Roberts led the four dissenters) ruling recognized it as well:
The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.
The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.
- Obergefell v. Hodges (2015)
The increased support of gay rights, including same-sex marriage, continues to result in some backlash. Some people strongly believe homosexual behavior is immoral and against their religious beliefs.
It follows a pattern found in the past, including when ending segregation led to certain private schools claiming a right to separate the races based on religious beliefs.
Nonetheless, the changing times are shown by the bipartisan Respect For Marriage Act, which was passed in 2022. The federal Defense of Marriage Act was repealed.
Trans Rights
Cultures from ancient times have recognized that simple divisions such as “male” and “female” do not provide the full richness of humanity. For instance, Native Americans recognized “two-spirit” people who did not have typical gender qualities.
Various terms have been used to discuss the diversity of sex and gender, including trans, gender identity, and queer.
The growing acceptance of these classifications has led to an expansion of the typical abbreviation for lesbian, gay, and bisexual rights.
We now have a “T” for trans and sometimes additional terms such as “Q” for questioning or queer. Thus, LGBTQ rights are talked about.
The Supreme Court in Bostock v. Clayton County (2020) held that federal civil rights laws that protect employees against gender discrimination should be applied to gays and transgender employees. The discrimination ultimately turned on beliefs about proper sex roles.
This was not a constitutional ruling, but an interpretation of a federal law. Nonetheless, gender discrimination also is banned by the Constitution. There is a continual debate on how this principle should apply to trans rights and issues of gender identity.
The Dobbs ruling, which overruled abortion rights, also calls into question the true breadth of gender equality.
Many states have passed or considered limits on the rights of trans people, which continues to result in a lot of litigation. How the Supreme Court treats such questions largely remains to be seen. Meanwhile, LGBT people have come a long way from the closet of the 1950s.