LGBTQ+ Legal History

• legal history (in the U.S.) with regard to local/state/national government

our system of constitutional law is premised on the rights enumerated in the federal constitution being natural rights—that is, rights that are inalienable and preexist our government. What this means is that the Bill of Rights, the first ten amendments to the Constitution, does not grant any rights. Rather, each amendment represents a mandate for the government to not interfere with individual rights or to not prevent others from doing so.

national law

• rmbr bill of rights ratified in 1791 vs. constitution (1787)
  • 9th amendment: “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
    • used as foundational basis for protection of human rights
      • Griswold v. Connecticut, 1965: right to privacy within marriage, birth control
  • 14th: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
    • ratified in response to slavery; later used as basis for protection of sexual rights
      • Planned Parenthood v. Casey (1992): trimester-based, womens’ rights to privacy, reproductive rights
      • Bowers v. Hardwick (1986)
      • Romer v. Evans (1996): national decision over state law
        • Anthony Kennedy on court, Antonin Scalia
      • Boy Scouts of America v. Dale (2000)
      • Lawrence v. Texas (2003)
      • United States v. Windsor (2013)
      • Obergefell v. Hodges (2015)
      • Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018)
      • Bostock v. Clayton County, Georgia (2020)
    • limited by cases
      • Slaughter-House Cases (1873), limit privileges/immunities
      • Palko v. Connecticut (1937), limit protections to “very essence of a scehem of ordereed liberty”
• Bowers: fundamental right to privacy did not apply to gay men; no protection of sodomy
  • “rooting in history and tradition” of heterosexuality and procreation
  • contextually during AIDS epidemic
  • criminalization of homosexuality, impact on AIDS crisis
• Price Waterhouse v. Hopkins (1989): sex stereotyping is a form of prohibited sex discrimination
• Romer: state discrimination of homosexuality violates equal protection clause
  • compare to discriminatory laws vs. race and gender
  • Dale: rationalized discrimination, “expressive” vs. direct discrimination rulings were permitted
    • Boy Scouts in general v. Girl Scouts rulings/ideology
    • both predate Lawrence
• Lawrence: fundamental right to privacy applied to homosexual adults
  • “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. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”
  • not cited under equal protection clause
  • decriminalizing homosexual sodomy → destigmatizing homosexuality → removing unequal burden on homosexual sex
  • criticizing for privacy; assimilationist pov
• Windsor: ruling against DOMA
• Obergefell: equality of homosexual marriage, ban against state prohibition of homosexual marriage
  • note of “synergy” between due process and equal protection IRT right to same-sex marriage
  • highlight of tradition, sanctity of marriage; conservative notions of family values
    • worth highlighting esp. due to Kennedy’s background?
• Masterpiece: freedom of religious beliefs to impose on discrimination
  • hierarchal priority of freedom of identity?
• Bostock: LGBTQ+ people (emphasis on gay and gender-nonconforming) protected by CRA

state law

• Hawaii first state to rule on same-sex marriage equality
  • Baehr v. Miike, 1996 legality in courts
  • Defense of Marriage Act of 1996 → state legislature 1998

    • A U.S. federal law passed by the 104th Congress and signed into law by President Bill Clinton, defining marriage for federal purposes as the union of one man and one woman. The law allowed states to refuse to recognize same-sex marriages granted under the laws of other states. However, the provisions were ruled unconstitutional or left effectively unenforceable by Supreme Court decisions in the cases of United States v. Windsor (2013) and Obergefell v. Hodges (2015).

• Massachussets first state to legalize same-sex marriage, 2004
  • 37 states by 2013 (Windsor)
  • criticization of same-sex marriage: patriarchal institution, insight into marriage structure, misdirection of LGBTQ efforts towards LGBTQ+phobic laws
• previous laws criminalizing gender non-conformity

anti-LGBTQ+ hate crimes

• UpStairs Lounge, 1973
• Pulse, 06/12/2016
• hate crime:
  • “informal social control mechanisms used in stratified societies”
  • “contemporary oppression/policing”
  • reinforcement of othering, systemic violence
  • theories of cause being conflicts over resources, bias and hostility against powerless othered, and authority failure
  • documentation of post-colonial LGBTQ+ hate crimes; interpretation of procreation and Judeo-Christian theology
• rise of hate crime rates via 1800s → anti-sodomy and related laws
• hate crime criminalization
  • Enforcement Act of 1871 (Ku Klux Klan Act)
    • United States v. Harris, 1883
  • Civil Rights Law, 1968
    • federal authority to prosecute perceived hate crimes occurring when a victim was participating in a federally protected activity; exclusion of sex discrimination
  • 1978, California → state laws; other states followed through 1980s + through AIDS epidemic
  • 1990, Hate Crime Statistics Act
    • note this was about statistics and not actual prosecution of hate crimes; reporting vs. actual
  • Hate Crimes Prevention Act, 2009
    • hate crime protection for sexual orientation, gender, or disability!!
    • increased punishment for hate crimes
  • 2019: 20 states include orientation and identity in hate-crime laws