Gay and Lesbian Rights

State and local governments did not respond uniformly to Romer. A significant number of governmental entities expanded the legal rights of gays and lesbians. By the year 2000, ten states, the District of Columbia, 27 counties, and more than 150 cities had passed laws protecting gays and lesbians from discrimination. Most laws were limited to prohibiting discrimination against homosexuals in the workplace. A few laws went further, however, barring gay discrimination by public accommodations, credit institutions, HEALTHCARE providers, educational facilities, and landlords.

Conversely, other state and local governments enacted measures restricting homosexuals' civil rights. Unlike Amendment 2 in Colorado, these measures did not generally attempt to completely exclude gays and lesbians from seeking legal redress for discrimination. Instead, some state and local governments tried to prevent gays and lesbians from exercising particular legal rights traditionally exercised only by heterosexuals. The right to marry and the right to adopt children continue to be the two most frequent targets of these anti-gay laws.

In 1993, voters in Cincinnati, Ohio, passed an initiative amending its city charter to prohibit the city from adopting or enforcing any ordinance, regulation, rule, or policy that entitled gays, lesbians, or bisexuals the right to claim minority or protected status. Gay and lesbian groups challenged the constitutionality of the amendment in federal court, arguing that it denied them EQUAL PROTECTION of the law.

In Equality Foundation of Greater Cincinnati v. Cincinnati, 860 F. Supp. 417 (S.D. Ohio 1994), the U.S. District Court for the Southern District of Ohio granted the plaintiffs a permanent INJUNCTION that precluded the charter amendment from going into effect. The District Court's decision was overturned on appeal in Equality Foundation of Greater Cincinnati v. City of Cincinnati, 128 F.3d 289 (6th Cir. 1997). The Sixth Circuit Court of Appeals said that Cincinnati's charter amendment was different from Colorado's Amendment 2 because the charter amendment did not deprive gays and lesbians of all legal redress in the entire state.

The Sixth Circuit found that the charter amendment's scope was limited to the confines of the city and that homosexuals' fundamental right to participate in the state's political process was not affected by the local law. Thus, the court concluded that the charter amendment was rationally related to the city's valid interest in conserving public costs that are incurred from investigating and adjudicating sexual orientation discrimination complaints. The Supreme Court surprised many legal observers when it denied certiorari to consider the Sixth Circuit's decision. Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 525 U.S. 943, 119 S. Ct. 365, 142 L. Ed. 2d 302 (1998).

Anti-gay discrimination state legislation has often been met with opposition. In 1998, voters in the state of Maine repealed the state's gay rights law by a narrow margin, marking the first time that a state has repealed a gay rights law. The law, which never went into effect, was repealed by a "people's veto" referendum that was initiated by a petition campaign.

The repeal thwarted a 20-year effort by Maine's Lesbian-Gay Political Alliance to secure civil rights protections. In May 1997, the Maine legislature passed the amendment to the Maine Human Rights Act, 5 Me. Rev. Stat. Ann. § 4552 (West Supp. 2003). The amendment banned discrimination in housing, employment, public accommodations, and credit based on sexual orientation. Governor Angus King, a strong supporter of the legislation, signed the bill into law that May.

The new law aroused immediate opposition. A conservative group led by members of the Christian Civil League of Maine and the state chapter of the CHRISTIAN COALITION organized volunteers to collect signatures on petitions calling for a state referendum on the law. In February 1998, voters chose to overturn the law by a 51 to 49 percent margin.

Other state legislation survived both court challenges and political sparring. In 2000, the Vermont legislature passed a law allowing homosexuals the legal benefit of marriage by entering into civil unions. Shortly before the law became effective that year, a group of plaintiffs filed a lawsuit to have it overturned.

The Vermont legislation stemmed from a decision in the Vermont Supreme Court, Baker v. Vermont, 744 A.2d 864 (Vt. 1999), in which the court held that preventing homosexual couples from getting the public benefits that flow from marriage violates the Common Benefits Clause of the Vermont Constitution. The provision states," That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community."

Following the decision, the legislature responded by passing An Act Relating to Civil Unions, Vt. Stat. Ann., title 18, §§ 5160–5169 (2001), which requires town clerks to issue civil union licenses to homosexual couples who complete a form and satisfy other requirements. These couples must then have the union certified by a member of the clergy or a JUSTICE OF THE PEACE. Dissolving a civil union requires family court proceedings similar to those for a DIVORCE. Several plaintiffs, including town clerks required to issue licenses under the new law, brought suit to challenge the legislation. However, a lower court dismissed the lawsuit, and the Vermont Supreme Court affirmed the dismissal.

Other plaintiffs have sought, though ultimately unsuccessfully, to challenge discrimination under a variety of state laws. Policies of the Boy Scouts of America, an organization that refuses to admit homosexuals, have been the subject of several of these lawsuits. In 1998, the California Supreme Court ruled that the state's human rights act did not apply to the Boy Scouts because the organization was not a business establishment. Curran v. Mount Diablo Council of the Boy Scouts of America, 952 P.2d 218 (Cal. 1998).

The plaintiff in the case, Timothy Curran, was a Boy Scout from 1975 to 1979, when he was 14 to 18 years of age. He had a distinguished scout career, attaining the rank of Eagle Scout and earning numerous honors. After he had left the organization upon turning 18, he appeared in a series of articles in an Oakland newspaper about gay teenagers. When he later applied to become an assistant scoutmaster, scout officials denied his application due to his homosexual lifestyle. He first filed suit in 1982, but the original trial did not take place until 1990. Both the trial court and a California court of appeals held, similar to the later ruling by the California Supreme Court, that because the Boy Scouts was not a business establishment, the human rights law did not apply to them.

The California Supreme Court's decision was the opposite of decisions by courts in New Jersey. James Dale had been involved in the Boy Scouts from the age of eight. Like Timothy Curran, Dale was an exemplary member, earning the rank of Eagle Scout. Dale was later approved for adult membership. However, while he attended Rutgers University, he became the co-president of the university gay and lesbian campus organization and appeared in an article where he admitted to being a homosexual. The Boy Scouts then revoked his membership based on his homosexuality.

The New Jersey Superior Court's Appellate Division, in Dale v. Boy Scouts of America, 706 A.2d 270 (N.J. Super. 1998), determined that the Boy Scouts' policy violated the state's public accommodation law under New Jersey's Law Against Discrimination, N.J. Stat. Ann. § 10:5-1 et seq. The case was eventually appealed to the New Jersey Supreme Court, which agreed with the superior court's decision. Dale v. Boy Scouts of America, 734 A.2d 1196 (N.J. 1999). These decisions were initially considered major victories for gay and lesbian rights supporters.

However, the U.S. Supreme Court reversed the decisions of the New Jersey courts in BOY SCOUTS OF AMERICA V. DALE, 530 U.S. 640, 120 S. Ct. 2446, 147 L. Ed. 2d 554 (2000). The Court, in a 5 to 4 decision, held that forcing the organization to accept gay troop leaders violates the Boy Scouts' right of free expression and free association under the FIRST AMENDMENT.

Prior decisions by the Court had reached similar holdings. In Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557, 115 S. Ct. 2338, 132 L. Ed. 2d 487 (1995), the Court ruled that the sponsor of Boston's St. Patrick's Day parade could not be forced to allow a group of gays and lesbians to participate. The Court held that parades are a form of expression and that the sponsors could not be forced to include "a group imparting a message the organizers do not wish to convey."

In Dale, the Court, per Chief Justice WILLIAM H. REHNQUIST, found that the Boy Scouts similarly engage in expressive activity. More specifically, the Court recognized that the Boy Scout oath and creed, which include provisions admonishing scouts to be "morally straight" and "clean," were the types of expressive conduct protected by the First Amendment. The Boy Scouts in the case proclaimed that the organization did not wish to admit homosexuals because it did not want to "promote homosexual conduct as a legitimate form of behavior." Because the Boy Scouts could not be forced to convey a message contrary to one they did not want to convey, they could not be forced to allow homosexuals to become members.

Gay and lesbian rights groups, who decried the decision in Dale, have continued to strive for equality. These groups have sought to put pressure on such organizations as the Boy Scouts of America. For example, the Broward County School Board in Florida voted to ban the Boy Scouts from each of the 215 schools in the district due to the organization's discriminatory policies regarding homosexuals. In another form of protest, some Eagle Scouts, both gay and straight, returned their Eagle badges to the Boy Scouts' headquarters.

Because gay and lesbian rights advocates have had only limited success in the courts, state legislatures and local governmental entities have sought to achieve these rights by changing society's perceptions of homosexuality in general. The United States nevertheless remains fractioned in the debate, as many conservative groups strongly oppose recognition of homosexuality as a civil right. The nation will likely continue to hear both sides of this debate, and the U.S. legal system is likely to see many more legal challenges involving gay and lesbian rights.