In 1965, the same year that President Lyndon Johnson signed what may be the most important civil rights law in American history, an early gay rights group known as the Mattachine Society of Washington asked the United States Civil Service Commission to rescind a policy declaring openly gay individuals “unsuitable for Federal employment.” The Commission’s response to the Mattachine Society reads less like a government document and more like an tract from an anti-gay hate group. It explained that the policy would remain in place due to
the revulsion of other employees by homosexual conduct and the consequent disruption of service efficiency, the apprehension caused other employees of homosexual advances, solicitations or assaults, the unavoidable subjection of the sexual deviate to erotic stimulation through on-the-job use of the common toilet, shower and living facilities, the offense to members of the public who are required to deal with a known or admitted sexual deviate to transact Government business, the hazard that the prestige and authority of a Government position will be used to foster homosexual activity, particularly among the youth, and the use of Government funds and authority in furtherance of conduct offensive both to the mores and the law of our society.
“Homosexual conduct, including that between consenting adults in private,” the Commission added, “is a crime in every jurisdiction, except under specified conditions, in Illinois.”
This legacy of state-sponsored discrimination, rooted in stereotypes and deference to anti-gay animus, should have led the courts to conclude that same-sex couples must enjoy full marriage rights many decades ago. As the Supreme Court has long held, groups that have historically been subject to discrimination that bears “no relation to ability to perform or contribute to society” enjoy heightened protection under the Constitution’s promise that no one shall be denied “the equal protection of the laws.” Yet the justices have sat on their hands, refusing to extend this protection to LGBT Americans even in their most recent gay rights decisions. When the Court’s current members have extended gay rights, they’ve emphasized their desire to move slowly almost as much as they’ve focused on the injustices they are correcting.
Next week, the Supreme Court will once again hear oral arguments in a group of cases that seek to extend full marriage equality to all 50 states. In the lead up to these arguments, the Court has appeared to telegraph its intention to back equality so loudly that one of the Court’s conservative members complained in February that his more liberal colleagues seemed to be showing their hand too soon. It is very likely that five justices will join together to declare marriage discrimination unconstitutional this June.
Should that day come, however, it will come only after the Court spent decades ignoring the powerful constitutional arguments supporting gay rights — and almost as long handing down pro-gay decisions at an uncharacteristically slow pace.
“The Sex Pervert”
Lest there be any doubt that gay Americans have faced the kind of irrational discrimination bearing “no relation to ability to perform or contribute to society” that triggers heightened constitutional protection, an amicus brief filed by the Organization of American Historians documents the long legacy of anti-gay discrimination in the United States. In 1923, for example, the state of New York enacted a law providing that “’frequent[ing] or loiter[ing] about any public place soliciting men for the purpose of committing a crime against nature or other lewdness’ was a form of disorderly conduct.” Over the four decades that followed, police made over 50,000 arrests under this law just in New York City. In 1950, Philadelphia formed a “morals squad” that arrested about 200 gay men every month. The District of Columbia made more than a thousand arrests every year. Many drinking establishments posted signs stating that “We Do Not Serve Homosexuals” in an effort to ward off police raids targeting gay bars.
Meanwhile, political activity supporting gay rights — or even art and entertainment depicting same-sex attraction — was strictly censored. In 1924, Chicago police “raided the home of the founder of the nation’s earliest known gay political group and seized the group’s files,” according to the Historians’ brief. Three years later, “police arrested the cast of ‘The Captive,’ an acclaimed Broadway drama exploring one woman’s unrequited love for another.” New York State followed this arrest with a “padlock law” prohibiting theaters from hosting productions with gay or lesbian characters. Meanwhile, Boston’s mayor banned a lesbian-themed play because it “showed moral perversion, the unnatural appetite of two women for each other.”
Between the 1930s and the 1950s, more than half the states enacted laws “empowering the police or courts to force people convicted of certain sexual offenses—or, in some states, merely suspected of being ‘sexual deviants’— to undergo psychiatric examinations.” These examinations led to some Americans being confined indefinitely and against their will while the state sought to “cure” their “pathology.” One California prosecutor claimed that assaults on gay Americans’ privacy were necessary because “[a]ll too often we lose sight of the fact that the homosexual is an inveterate seducer of the young of both sexes, and is ever seeking for younger victims.”
The federal employment ban unsuccessfully challenged by the Mattachine Society grew out of Senator Joseph McCarthy’s attacks on the State Department for employing gay people. Following McCarthy’s attacks, a Senate subcommittee investigated “the employment of homosexuals and other sex perverts in government” and determined that “those who engage in overt acts of perversion lack the emotional stability of normal persons” and that they “constitute security risks.”
Between 1947 and 1950, “’approximately 1,700 applicants for Federal positions were denied employment because they had a record of homosexuality or other sex perversion,’ and during the same period over 400 federal employees resigned or were dismissed for the same reasons.” President Eisenhower issued an executive order in 1953 that banned gay people from the federal workforce and that required “federal contractors to ferret out and discharge their homosexual employees or risk losing their contracts.” One year before that executive order, Congress prohibited gay men and lesbians from immigrating to the United States.
These official attacks on gay rights did begin to quiet down in the 1960s and 1970s. New York City Mayor John Lindsay, for example, ended “widespread police entrapment of gay New Yorkers,” and the total ban on hiring by federal agencies was lifted in 1975 — although individual agencies remained free to discriminate until President Bill Clinton issued an executive order forbidding civilian discrimination in 1998.
Nevertheless, these gains provoked a backlash that rendered much of the progress of the 60s and 70s short-lived. Inspired by singer Anita Bryant’s anti-gay “Save Our Children” campaign, more than half-a-dozen referenda repealed local laws protecting gay men and lesbians against discrimination. Florida enacted a ban on adoption by gay parents. In the 1980s, Massachusetts began a policy of preferred placement for foster children in “traditional family settings” — a euphemism for households led by heterosexuals. Some courts “articulated a ‘per se’ rule denying all custody and visitation claims made by gay and lesbian parents, holding as a matter of law that homosexuality was inherently inconsistent with parenthood.”
Nor has this kind of government-sanctioned discrimination and harassment of LGBT Americans ceased as the nation has grown more welcoming towards gay rights. As recently as 2009, 19 patrons of an Atlanta gay club filed a federal lawsuit against city police claiming that they were illegally searched and detained after the bar was raided by dozens of officers, many of whom were dressed in SWAT gear.
Throughout much of this history, the Supreme Court simply turned a blind eye. When an early gay rights case, brought by two Minnesota men seeking the right to marry, reached the Court in 1972, the justices dismissed the case with a single sentence — the appeal was “dismissed for want of substantial federal question.” At the time, this was a common formulation the justices used to dispose of cases that fell within the Court’s mandatory jurisdiction, but that the justices deemed unworthy of their time. This one sentence order in the case known as Baker v. Nelson is still cited to this day by defenders of marriage discrimination, who claim that it represents the Supreme Court’s pronouncement that marriage equality is not protected by the Constitution.
The Court’s Equal Protection doctrines were, admittedly, not as well-developed in 1972 as they are today. By 1986, however, when the Supreme Court handed down Bowers v. Hardwick, the rule protecting groups that have historically been subject to irrational discrimination was firmly established. Nevertheless, Bowers permitted the state of Georgia to prosecute a man who doing nothing more than having sex with another man. There is no “constitutional right of homosexuals to engage in acts of sodomy,” Justice Byron White wrote in his opinion for the Court.
(Justice Lewis Powell, who cast the key fifth vote to uphold the Georgia law permitting this prosecution, said after his retirement that “I think I probably made a mistake in that one.”)
The tide began to turn in 1996, when the Supreme Court struck down a Colorado constitutional amendment that prohibited the state legislature and local governments from enacting civil rights protections for gay, lesbian, and bisexual individuals. Yet Justice Anthony Kennedy’s opinion in Romer v. Evans comes nowhere close to recognizing that all laws that discriminate on the basis of sexual orientation should be subject to heightened scrutiny under the Constitution. Rather, Kennedy rooted his opinion in the narrow observation that “if the constitutional conception of `equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”
Seven years later, the Court overruled Bowers. Yet Kennedy’s opinion in Lawrence v. Texas once again did not extend heightened scrutiny to laws targeting gay Americans. Indeed, much of Kennedy’s opinion reads less like a judicial decision and more like a passage from the hippie anthem “Age of Aquarius.” “When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” Kennedy wrote in a particularly flowery passage, before concluding that “[t]he liberty protected by the Constitution allows homosexual persons the right to make this choice.”
Though the justices have never explained in a published opinion why they’ve thus far been unwilling to embrace the conclusion dictated by their Equal Protection precedents — that gay Americans have faced a legacy of discrimination that bears no relation to their “ability to perform or contribute to society,” and thus that laws which discriminate on the basis of sexual orientation should be treated with great skepticism by the courts — some members of the Court have indicated why they’ve resisted their own precedents elsewhere. Kennedy’s expressed concerns that the Court’s too often become the venue where political battles are resolved, and he’s fretted about the “uncharted waters” ahead if the Court strikes down marriage discrimination in all 50 states. Justice Ruth Bader Ginsburg has warned that the Court moved “too far, too fast” in Roe v. Wade and has hinted that she is cautious about doing the same on gay rights.
This desire to tread cautiously, however, is hard to square with the Court’s behavior outside of the gay rights context. Kennedy, for example, showed little concern about the “uncharted waters” facing American democracy when he authored the Court’s opinion in Citizens United, which eliminated many longstanding limits on political campaign donations. Nor did Kennedy appear particularly bothered by the turbulent waves that would have ripped through the health care sector if he had succeeded in repealing the entire Affordable Care Act. As the frequent swing vote on the Supreme Court, Justice Kennedy may be the most powerful jurist in the nation, yet his concern about moving too fast does not appear to extent far beyond gay rights.
Nevertheless, if Kennedy and four of his colleagues ultimately recognize that laws that discriminate on the basis of sexual orientation should always been treated with skepticism by the courts, then he will do nothing more than acknowledge something that’s been implicit in the Court’s precedents for at least thirty years. The Supreme Court’s own decisions, combined with the long history of anti-gay bigotry and stereotyping, lead naturally to the conclusion that anti-gay discrimination is disfavored by the Constitution.