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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 gay men. 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 23 states; > 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 sectors. 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 challenged. Here are the ACLU's answers to some questions frequently asked by the public about the rights of lesbians and gay men. What is the constitutional basis for lesbian and gay rights? The struggle for legal equality for lesbians and gay men rests on several fundamental constitutional principles. 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 and disability. 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 criminalizing sodomy. 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 sodomy statutes. Why is it necessary to seek repeal of sodomy laws when they are so rarely enforced? 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, therefore, justified. 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 Court explained: "...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 treatment? 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 orientation. 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 employees. 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 second-class citizens. 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. ============================================================= ACLU Free Reading Room | A publications and information resource of the gopher:// | American Civil Liberties Union National Office | | "Eternal vigilance is the price of liberty"


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