Homosexuality and the Law

In the United States, homosexuality and the law are best understood through the prism of the penal regulation of same-sex sexual activity. Legal prohibitions against consensual sodomy date to the nineteenth century and permeate both the criminal and civil law in their dealings with lesbians and gay men.

By the mid-twentieth century, all American states criminalized noncommercial sodomy among consenting adults in private as a felony, with penalties ranging to twenty years in prison. Typically banning cunnilingus, fellatio, and anal intercourse, these statutes often revealed their Victorian roots by describing the forbidden acts merely as the “crime against nature.” Although the statutes in theory applied to all people regardless of sexual orientation, sodomy proscriptions were selectively enforced against homosexuals. Prosecutions reached their zenith in the late 1940s and 1950s, with tens of thousands of lesbians and gay men ensnared.

Equally important, judges have used sodomy laws to justify denying civil rights and liberties to lesbians and gay men. Research on American appellate courts indicated that the presence of consensual sodomy laws helped predict about 8 percent more negative judicial action regarding all lesbian-and-gay-rights claims than in jurisdictions without the prohibition. Accordingly, in addition to their criminal sting, sodomy statutes affect the home, cited, for instance, as good reason to refuse lesbian and gay parents custody of, and visitation with, their children (e.g, Bottoms v. Bottoms (1995)); Ex parte D. W. W (1998); and Thigpen v. Carpenter (1987)) (see child custody).

Sodomy laws also infiltrate the workplace, with the ban on lesbian and gay military service members the most conspicuous example (Dronenburg v. Zech (1984)). In turn, other federal agencies have discriminated against homosexual civilians: the Central Intelligence Agency (Doe v. Gates (1993)), the Department of Defense (High Tech Gays v. Defense Industrial Security Clearance Office (1990)), the Federal Bureau of Investigation (Padula v. Webster (1987)), and the U.S. Information Agency (U.S. Information Agency v. Krc (1993)). At the state level, an attorney general’s denial of employment to an otherwise qualified lesbian attorney was upheld in part because of a sodomy law [Shahar v. Bowers (1997)).

States have taken other antigay actions allegedly in deference to sodomy statutes. In 1995, Alabama passed a law forbidding the use of public funds by colleges and universities to support activities of groups fostering lifestyles proscribed by the state’s sodomy law. Oklahoma adopted a law dismissing or suspending teachers engaged in the advocacy of homosexual conduct that might come to the attention of school children or employees. Federal courts struck down both statutes based on the First Amendment’s prohibition of viewpoint discrimination (Gay Lesbian Bisexual Alliance v. Pryor (1997)); National Gay Task Force v. Board of Education of the City of Oklahoma City (1984)). State universities have withheld formal recognition of lesbian-and-gay student organizations because school officials thought their approval would lead to sodomy-law violations, e.g., Gay Lib v. University of Missouri (1977)); Gay Student Services v. Texas A&M University (1984).

Ironically, this sodomy-law-based homophobia occurred during a sea change in American penal law. In 1955, the American Law Institute voted to recommend decriminalization of consensual sodomy. Six years later, in adopting the ALI’s Model Penal Code, Illinois became the first state to eliminate criminal sanctions for noncommercial sodomy among consenting adults in private. Twenty-four other states and the District of Columbia followed suit: Alaska (1978), California (1975), Colorado (1971), Connecticut (1969), Delaware (1972), District of Columbia (1994), Hawaii (1972), Indiana (1976), Iowa (1976), Maine (1975), Nebraska (1977), Nevada (1993), New Hampshire (1973), New Jersey (1978), New Mexico (1975), North Dakota (1973), Ohio (1972), Oregon (1971), Rhode Island (1998), South Dakota (1976), Vermont (1977), Washington (1975), West Virginia (1976), Wisconsin (1983), and Wyoming (1977). Further, the highest courts of Georgia (Powell v. State (1998)), Kentucky (Commonwealth v. Wasson (1992)), Montana (Gryczan v. State, (1997)), New York (People v. Onofre (1980)), and Pennsylvania (Commonwealth v. Bonadio (1980)) invalidated their states’ laws, while lower courts did so in Arkansas, Maryland, Tennessee, and Texas. Moreover, the legislatures in seven states reduced consensual sodomy from felony to misdemeanor level: Alabama (1977), Arizona (1977), Arkansas (1977), Kansas (1969), Minnesota (1977), Missouri (1977), and Utah (1973).

Thus, in 2001, Idaho, Louisiana, Massachusetts (the law of which Commonwealth v. Balthazar (1974) attenuates), Michigan, Mississippi, North Carolina, South Carolina, and Virginia maintain felony-level sodomy statutes affecting both same-sex and opposite-sex partners, while Alabama, Arizona, Florida, Minnesota, and Utah do so at the misdemeanor level. Five states (Arkansas, Kansas, Missouri, Oklahoma, and Texas) penalize sexual activity only between same-sex partners, with just one (Oklahoma) at the felony level. In short, during the last four decades of the twentieth century, more than 80 percent of the states eliminated consensual sodomy as a felony.

The most consequential constitutional challenge to sodomy laws occurred in Bowers v. Hardwick (1986). There, by a five-to-four vote, the Supreme Court rejected an extension of privacy rights granted heterosexuals in Griswold v. Connecticut (1965), and its progeny. Indeed, the Hardwick Court derided the privacy claim, characterizing the issue as “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy” and then labeling that assertion as, “at best, facetious.”

However, in Romer v. Evans (1996), the Court, by a six-to-three vote, upheld an equal-protection attack on Colorado’s Amendment 2, a popularly mandated state constitutional revision forbidding localities from enacting ordinances outlawing discrimination against lesbians and gay men. The Romer Court’s analysis that “the amendment seems inexplicable by anything but animus toward the class that it affects” and thereby “lacks a rational relationship to legitimate state interests” implicitly overrules Hardwick, because sodomy laws, especially those criminalizing only same-sex conduct, are similarly flawed. In Oklahoma, for example, lesbian and gay adults are felons for performing the same private, consensual acts heterosexuals do, but without the prospect of ten years in prison.

State courts have agreed. In 1998, the Georgia Supreme Court struck down the law upheld in Hardwick, but on state, not federal, constitutional grounds (Powell, supra). In all, the appellate courts of eight states (among the twenty-five not decriminalizing consensual sodomy by legislative action) have declared their sodomy laws unconstitutional or otherwise inapplicable to private consensual activity among adults.

Military Ban.

The United States is the only major western power to discharge military personnel because of their sexual orientation. Despite the “Don’t Ask, Don’t Tell” law adopted by Congress and the Clinton administration in 1993, the ban is the most blatant form of sexual-orientation apartheid in America, responsible for the annual separation of about one thousand lesbians and gay men from the armed forces. Diverse arguments against the taboo have been made to the federal courts of appeals for over twenty years, and every constitutional claim has failed (e.g., Beller v. Middendorf (1980); Woodward v. United States (1989); Steffan v. Perry (1994); Walmer v. U.S. Department of Defense (1995); Richenberg v. Perry (1996); Philips v. Perry (1997); Holmes v. California Army National Guard (1997); Able v. United States (1998)). The prominent exception to this vast panorama of ineffable personal tragedy is Watkins v. U.S. Army (1989), where the service member prevailed on a nonconstitutional ground (equitable estoppel).

The Supreme Court itself has yet to rule on the policy’s constitutionality. Many intermediate appellate decisions cite Hardwick as authority for the military ban. Nevertheless, Romer’s presumptive overruling of Hardwick leaves the viability of the military’s homosexual exclusion an open question.

Employment.

Legislation in eleven states (California, Connecticut, Hawaii, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, Rhode Island, Vermont, and Wisconsin), and in at least eighty-eight counties and municipalities of other states, prohibits discrimination based on sexual orientation in public and private employment. Executive orders protect public employees in Colorado, Iowa, Maryland, New Mexico, New York, Pennsylvania, and Washington. In contrast to sodomy laws, statewide gay-civil-rights provisions have helped predict success in appellate-court rulings on all lesbian-and-gay-rights claims by 13 percent more than in jurisdictions without the statutory protection.

In addition, many public and private employers have nondiscrimination policies that include sexual orientation. President Bill Clinton issued an executive order to that effect for civilian employees of federal agencies, and over half of the “Fortune 500” companies have employment rules not to discriminate against lesbians and gay men.

Gay Marriage.

In Baker v. State (1999), the Vermont Supreme Court held that the Vermont Constitution required the state to extend to same-sex couples the common benefits, protections, and security flowing from marriage. In response, the state legislature took the historic step of granting “civil unions” to same-sex couples, conferring about three hundred legal benefits and obligations on the newly de facto spouses. The Hawaii Supreme Court, in Baehr v. Lewin (1993), ruled that the exclusion of same-sex couples from the state’s marriage statute constituted sex discrimination under the Hawaii Constitution and was subject to strict scrutiny. The state legislature then passed the Hawaii Reciprocal Beneficiaries Act, a less comprehensive grant of legal benefits to same-sex couples than in Vermont, but nonetheless significant.

The Hawaii and Vermont court decisions also triggered hostile legislative responses. In 1996, Congress passed the Defense of Marriage Act (DOMA), defining marriage as not to include same-sex unions in the application of federal law and providing that states are not required to give effect to same-sex marriages contracted or solemnized in other states. The latter provision seeks to subvert the Full Faith and Credit Clause of the federal Constitution, which requires states to recognize marriages validly performed in other states. In addition to DOMA, more than thirty states adopted laws prohibiting marriage between persons of the same gender.

Hate Crimes.

Hate crimes—offenses manifesting evidence of prejudice based on victims’ status or condition—concern lesbians and gay men. The Federal Bureau of Investigation reported that hate crimes based on sexual orientation rose in the United States by almost 15 percent between 1997 and 2001, at the same time that the overall crime rate diminished. Twenty-three states and the District of Columbia have hate-crimes legislation that explicitly includes sexual orientation among other protected categories such as race and religion.

Constitutional Victories.

Lesbians and gay men have savored some unequivocal, constitutionally based legal successes. Early triumphs in higher education came under the aegis of the First Amendment (Gay Students Organization v. Bonner (1974); Gay Alliance of Students v. Matthews (1976)). A notable later judicial win involved the constant verbal harassment and physical abuse of a gay public-school student by classmates, which mistreatment school officials habitually ignored. Relying on the Equal Protection Clause, a federal court of appeals held the Wisconsin school civilly liable for sexual-orientation discrimination [Nabozny v. Podlesny (1996), and the school district settled the suit for $900,000.

Lesbian-and-gay litigants have experienced even more reliable success in court when invoking state constitutions. In fact, court claims based on state constitutions have prevailed by a factor almost 75 percent more than those founded on the federal Constitution. For example, in Tanner v. Oregon Health Sciences University (1998), the state of Oregon gave health and insurance benefits to the spouses of heterosexual state employees, but denied the same perquisites to the unmarried domestic partners of lesbian and gay employees. In overturning this dissimilar treatment, the state court of appeals determined that the Oregon Constitution prohibited the state from granting privileges or immunities to one group of citizens that were not equally available to all and that lesbians and gay men were a “suspect” class, demanding a high level of judicial protection. In Campbell v. Sundquist (1996), the right to privacy of the Tennessee Constitution invalidated the state’s consensual sodomy law. Similarly implementing state constitutions, the supreme courts of Georgia (in Powell, supra), Kentucky (Wasson, supra), and Montana (Gryczan, supra) struck down their sodomy statutes.

Judicial Behavior.

Research on appellate courts has disclosed the importance of attitudinal forces in the judicial resolution of lesbian-and-gay-rights claims. For instance, religious affiliation is crucial. Roman Catholic judges were 11 percent more likely to vote against lesbian-and-gay rights than Protestant colleagues and 21 percent more negative than Jewish judges. Additionally, African-American and Hispanic jurists voted 20 percent more favorably than others, while women judges were 12 percent more positively disposed than male counterparts. In cases involving child custody, visitation, adoption and foster care, judges sixty years of age or older had a probability of voting against lesbian or gay litigants of 20 percent more than jurists under fifty years of age.

See also Gender and Law

Bibliography and More Information about Homosexuality and the Law

• Ruthann Robson, Lesbian (Out) law: Survival Under the Rule of Law, 1992.
• Marc Wolinsky and Kenneth Sherrill, eds., Gays and the Military, 1993.
• William B. Rubenstein, Cases and Materials on Sexual Orientation and the Law, 1997.
• Lisa Keen and Suzanne B. Goldberg, Strangers to the Law: Gay People on Trial, 1998.
• William N. Eskridge Jr., Gaylaw: Challenging the Apartheid of the Closet, 1999.
• Evan Gerstmann, The Constitutional Underclass: Gays, Lesbians, and the Failure of Class-Based Equal Protection, 1999.
• Janet E. Halley, Don’t: A Reader’s Guide to the Military’s Anti-Gay Policy, 1999.
• David A. J. Richards, Identity and the Case for Gay Rights: Race, Gender, Religion as Analogies, 1999.
• Patricia A. Cain, Rainbow Rights: The Role of Lawyers and Courts in the Lesbian and Gay Civil Rights Movement, 2000.

Daniel R. Pinello