Gay and Lesbian Rights

Advocates of gay and lesbian rights have sought the passage of legislation that prohibits discrimination in employment, housing, public accommodations, or public service on the basis of sexual orientation. Many U.S. cities have passed gay rights ordinances that accomplish these objectives. In 1982, Wisconsin became the first state to pass gay rights legislation.

At the national level, gay men and lesbians fought legal battles in the 1980s and 1990s to allow them to serve in the ARMED SERVICES. A series of lawsuits were filed that sought to over-turn military regulations that mandated discharge for disclosing a homosexual orientation.

In Meinhold v. United States Department of Defense, 34 F.3d 1469 (9th Cir. 1994), a three-judge panel ruled that Petty Officer Keith Mein-hold, of the U.S. Navy, could not be discharged for stating on a national television broadcast that he was gay. In the discharge proceedings, the Navy had taken the position that Meinhold should be discharged even though the Navy had not proved that Meinhold had committed any act of homosexual conduct.

The Ninth Circuit Court of Appeals concluded that a Navy policy against homosexual conduct was constitutional, as it was based on the Navy's professional judgment that homosexual conduct "seriously impairs the accomplishment of the military mission." However, the court of appeals ruled that Meinhold's statement that he was gay was not grounds for discharge. In the court's view, Meinhold had not demonstrated "a concrete, expressed desire to commit homosexual acts." Thus, the focus for the armed services must be on prohibited conduct and persons who are likely to engage in prohibited conduct.

The issue moved into the political arena following President Bill Clinton's election in November 1992. Clinton promised to honor his campaign pledge to exercise his authority as commander in chief of the armed forces and remove the military ban against gays. But the Joint Chiefs of Staff, headed by General Colin L. Powell, and many other senior Pentagon officers strenuously objected to Clinton's plan, claiming that ending the ban would interfere with military order, discipline, and morale. Led by Senator Sam Nunn (D-GA), chairman of the powerful Armed Services Committee, Congress demanded an opportunity to comment on the policy.

Faced with increasing pressure at the beginning of his administration, Clinton agreed to a six-month delay in lifting the ban. He agreed to

Keith Meinhold was reinstated in the U.S. Navy in 1993 following a Ninth Circuit Court ruling that he could not be discharged for stating on a national television broadcast that he was gay.
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establish a temporary policy developed by Nunn, and issued a directive ordering the military to stop asking new recruits about their sexual orientation; stop investigations to ferret out gays in uniform; and suspend current cases seeking to discharge gays, as long as those cases were based solely on homosexual status rather than on improper conduct. This policy, dubbed "don't ask, don't tell," became permanent when Congress wrote it into law in September 1993 (Pub. L. No. 103-160, 1993 H.R. 2401 § 571[a]). With this policy, gay men and lesbians were directed to keep their sexuality hidden if they intended to pursue a military career.

Congress has also considered laws that would include homosexuals as a protected class in some instances. However, these laws have met with strong resistance. For instance, in 1999, a bipartisan congressional group reintroduced the Hate Crimes Prevention Act of 1999 (H.R. 1082, 106th Cong.), which would have given federal authorities the power to investigate and prosecute crimes based on sexual orientation, as well as other forms of hate crimes. Despite the fact that the bill had 192 cosponsors, it did not pass through Congress. Current law limits prosecution of hate crimes to instances where the victim is targeted for engaging in certain federally protected activities, such as serving on a jury, voting, or attending public school.