The federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals.
The Department of Justice has written a brief in the Golinski case affirmatively advocating for LGBT rights - telling the courts that the Defense of Marriage Act should be overturned, and admitting that the government has participated in a long and sordid campaign to hurt LGBT people in the United States. This is a change from 2009's brief stating that DOMA is constitutional because it is also constitutional to ban incest and pedophilia, but it is also a change from their decision not to defend DOMA. This is more than not defending DOMA. This brief tells the courts and the American people that the LGBT Rights movement is a legitimate force and it deserves to be a significant part of the political process - and that the government was wrong for ever saying otherwise.
One of the main facets of our movement is our drive to be seen as legitimate - our efforts to show everyone that there has been a political institutional system in place that has been the driving force behind discrimination of our people. That system has morphed from simple bans on sexual behavior to a full-blown regime of subversion and debasement of gays and lesbians, of transgender and gender non-conforming people. It has been, in direct terms, an institution meant to stamp us out.
And we've been trying to explain this for so long. Back when the Red Scare was being perpetrated, the fact that it was driven by fears of "Communists and queers" went unnoticed by the majority of the population. Even to this day, people don't see the type of treatment gays, lesbians, and gender non-conforming people of all races deal with moment to moment. The dehumanization of our community has even been represented in Supreme Court decisions, dismissively referring to our rights as "at best, facetious."
Even the scholarship on our history is mostly limited to gay authors or those few people deeply interested in our movement.
Given this background, it's great to see a document written by our DOJ that actually helps us get our story out:
In addition to the discrimination reflected in DOMA itself, as explained below, the federal government, state and local governments, and private parties all have contributed to this long history of discrimination.
In 1950, Senate Resolution 280 directed a Senate subcommittee "to make an investigation in the employment by the Government of homosexuals and other sexual perverts." Patricia Cain, Litigating for Lesbian and Gay Rights: A Legal History, 79 Va. L. Rev. 1551, 1565-66 (1993). The Committee found that from 1947 to 1950, "approximately 1,700 applicants for federal positions were denied employment because they had a record of homosexuality or other sex perversion."
And if one were to think that this was just some obscure policy by the bureaucracy, one would be incorrect:
In April 1953, in the wake of the Senate investigation [of gays in government], President Eisenhower issued Executive Order 10450, which officially added "sexual perversion" as a ground for investigation and possible dismissal from federal service.
Presidents, Congresspeople, and military officials from the top all the way down participated in this behavior. Laws were strengthened and then enforced in ways that specifically hurt LGBT people more than others, even if those laws were facially neutral. In many ways the same strategy was used to eliminate homosexuality and subjugate people of color, though obviously the analogy is imperfect. In fact, in the military, "blue discharges" were issued to keep both gays and people of color out.
During the Red Scare, the government saw fit to eliminate gays from federal employment, on purpose, calling them "security risks" and arguing that they would aid the enemy.
The Order expanded the investigations of civilian employees for "sexual perversion" to include every agency and department of the federal government, and thus had the effect of requiring the termination of all gay people from federal employment.
Our government worked diligently to root out effeminate behavior among men:
The State Department, for example, charged '"skilled' investigators" with "interrogating every potential male applicant to discover if they had any effeminate tendencies or mannerisms," used polygraphs on individuals accused of homosexuality who denied it, and sent inspectors "to every embassy, consulate, and mission" to uncover homosexuality.
When they weren't forcing federal employees to undergo polygraph exams or show that they did not exhibit effeminate behavior, they were going through our mail:
The United States Postal Service ("USPS"), for its part, aided the FBI by establishing "a watch list on the recipients of physique magazines, subscrib[ing] to pen pal clubs, and initiat[ing] correspondence with men whom [it] believed might be homosexual." Id The mail of individuals concluded to be homosexual would then be traced "in order to locate other homosexuals." !d. The end result was thousands of men and women forced from their federal jobs based on the suspicion that they were gay or lesbian.
It seems that any law was stretched in order to accommodate the outing of gays and lesbians; no Constitutional provision was safe against the "threat" of gayness in our workforce.
More than that though, they did not just want gays, lesbians and gender non-conforming people out of the federal government, they wanted them out of the United States.
For decades, gay and lesbian noncitizens were categorically barred from entering the United States, on grounds that they were "persons of constitutional psychopathic inferiority," "mentally defective," or sexually deviant
And as we've seen from recent events, remnants of this history exist now - it's still incredibly difficult for us to keep gays and lesbians in the United States, even if they're law-abiding, married couples. The immigration restrictions that were repealed had to remain in place until 1990.
And then there are the states. Remember that if the federal government can make your life hell, the states can always make it worse than hell. Quite a bit of the states, mostly in the lower half of the country, have a terrible, bloody history with minority rights issues.
By the 1950s, many state and local governments had banned gay and lesbian employees, as well as gay and lesbian "employees of state funded schools and colleges, and private individuals in professions requiring state licenses." Williams Report, ch. 5 at 18. Many states and localities began aggressive campaigns to purge gay and lesbian employees from government services as early as the 1940s. Id. at 18-34.
This employment discrimination was interrelated with longstanding state law prohibitions on sodomy; the discrimination was frequently justified by the assumption that gays and lesbians had engaged in criminalized and immoral sexual conduct.
Note how the laws work together. This is exactly why our movement is in the process of trying to dismantle this regulatory system against our community. Sodomy laws, while being used to justify employment discrimination and other forms of discrimination and harassment, were also used more frequently against people of color and poorer people. Conveniently, sodomy laws could be used to hurt just about any minority in any way that could conceivably receive a defense.
The courts were complicit. The brief cites many, many cases where dismissals for "immorality" due to homosexuality were upheld. This carried over from federal jobs to military jobs to private jobs. Enforcing heterosexuality and so-called gender norms became the purpose of our government.
And then, they went after gay and lesbian parents:
Based on similar assumptions regarding the criminal sexual conduct of gays and lesbians, states and localities also denied child custody and visitation rights to gay and lesbian parents. See, e.g., Ex parte RH, 830 So. 2d 21,26 (Ala. 2002) (Moore, C.J., concurring) (concurring in denial of custody to lesbian mother on ground that "homosexual conduct is ... abhorrent, immoral, detestable, a crime against nature, and a violation of the laws of nature and of nature's God [and] an inherent evil against which children must be protected."); Pulliam v. Smith, 501 S.E.2d 898, 903-04 (N.C. 1998) (upholding denial of custody to a gay man who had a same-sex partner; emphasizing that father engaged in sexual acts while unmarried and refused to "counsel the children against such conduct")
There is seemingly no aspect of a person's life the government cannot destroy if it wants to, and it wanted to eliminate gays and lesbians from society. It did not want us employed. It did not want us in the military. It did not want us adopting kids. It did not want us having sex.
In truth, our government worked hard to deny us even the freedom of association guaranteed by the First Amendment:
State and local law also has been used to prevent gay and lesbian people from associating freely. Liquor licensing laws, both on their face and through discriminatory enforcement, were long used to harass and shut down establishments patronized by gays and lesbians.
I hope you caught that: the United States Government admitted that state and local governments have denied the Constitutional right of freedom of association.
State and local police also relied on laws prohibiting lewdness, vagrancy, and disorderly conduct to harass gays and lesbians, often when gay and lesbian people congregated in public. See, e.g., Pryor v. Mun. Court, 599 P.2d 636, 644 (Cal. 1979) ("Three studies of law enforcement in Los Angeles County indicate[d] that the overwhelming majority of arrests for violation of [the 'lewd or dissolute' conduct statute] involved male homosexuals.")
And here's the kicker: this is happening today.
Similar practices persist to this day. See, e.g., Calhoun v. Pennington, No. 09-3286 (N.D. Ga.) (involving September 2009 raid on Atlanta gay bar and police harassment of patrons); Settlement in Gay Bar Raid, N.Y. Times (Mar. 23, 2011) (involving injuries sustained by gay bar patron during raid by Fort Worth police officers and the Texas Alcoholic Beverage Commission).
As much as I... as anyone in our movement... would love to say this is all of "historical importance" or something, the truth is many of these practices are happening today. Our bars are being raided, our pride parades canceled, our soldiers kicked out of the military, our federal employees denied benefits based on their homosexuality, these things are not historical. These things are now.
Our efforts to stop this harassment have worked against us:
Efforts to combat discrimination against gays and lesbians also have led to significant political backlash, as evidenced by the long history of successful state and local initiatives repealing laws that protected gays and lesbians from discrimination.
The brief notes the "backlash" is still occurring as late as May 2011 with Tennessee's law stripping its jurisdictions of antidiscrimination protections for gays:
In fact, in May 2011, the Tennessee legislature enacted a law stripping counties and municipalities of their ability to pass local non-discrimination ordinances that would prohibit discrimination on the basis of sexual orientation, and repealing the ordinances that had recently been passed by Nashville and other localities.
And it's not just antidiscrimination, it's marriage, too:
Similar responses have followed states' decisions to recognize same-sex marriages.
Up until this point, we've been discussing federal, state and police discrimination and subjugation of LGBTs and gender non-conformers. This seems like a lot of information, a lot of horrible history and horrible policies continuing this day, and it is, but then the brief moves on to private discrimination. We can't forget that it is prevalent, too.
Finally, private discrimination against gays and lesbians in employment and other areas has been pervasive and continues to this day.9 See, e.g., Williams Report, ch. 5 at 8-9 (explaining that private companies and organizations independently adopted discriminatory employment policies modeled after the federal government's, and as "federal employers shared police and military records on gay and lesbian individuals with private employers, these same persons who were barred from federal employment on the basis of their sexual orientation were simultaneously blacklisted from employment by many private companies").
And again, it's lasted for so long because this regime of laws reinforces itself and works with state and law enforcement policies:
The pervasiveness of private animus against gays and lesbians is underscored by statistics showing that gays and lesbians continue to be among the most frequent victims of all reported hate crimes.
Lastly, in this brief, the DOJ cites Bolling v. Sharpe in our defense. Bolling is Brown's counterpart, dealing with segregation in Washington DC, specifically. I think, more than anything, the fact that the Government cited that case in our favor shows that they view our movement as legitimate. Whether or not one agrees that the LGBT Rights movement equals the Civil Rights movement (and there are good arguments for either point of view, admittedly) the US Government screwed up when it segregated people, when it discriminated using race. And Bolling (and Brown) represent(s) the Court telling the Government "you did something wrong hurting people this way." And their cite tells me that they view this situation as the Government, once again, hurting people in this way.
This brief is a huge admission of guilt and responsibility in government-sanctioned discrimination, and it is also a recognition that their sanctioning this behavior led to far worse consequences with state, local and private discrimination. The Department of Justice and the Obama Administration deserve major praise for this filing. The conversation is now changed: we are no longer asking if we can have rights, instead, the government is asking itself, "why are we doing this to these people?"