Since I burdened you with Hetero-imitative/Heteronormative and concern trolls when I got back from Melbourne, I figured my first post for this promising new group should be the paper I went there to present. As you remember, the conference was called "After Homosexual: The Legacies of Gay Liberation," and it celebrated the 40th anniversary of the publication of Dennis Altman's book
(The 1971 cover is not this garish, but I have papers that I should have graded three days ago, and it didn't come up on a web search; on the other hand, I've always thought that the version of modernism Australia adopted was dada - and think Priscilla: Queen of the Desert if you have doubts!)
Again, like If Marriage is in Trouble, Don't Blame Marriage Equality, it had to run 20 minutes, and it had to refer to the purpose of the conference (which it does in the first and the final paragraph). So follow me below the great orange schnecken:
In the concluding chapter of Homosexual: Oppression and Liberation, Professor Altman distinguishes between tolerance and acceptance and suggests that
any version of our full liberation involves at the same time an end to our special status,
the end, or at least the dramatic transformation, of the gay culture of the early 1970s.
Homosexual was written after the great dividing point in gay and lesbian history in the United States, the Stonewall riots, when it appeared that the potential of the gay liberation movement and politics based on a gay and lesbian identity was boundless. A study of gay and lesbian history in California, with its two large cities, San Francisco and Los Angeles, can illuminate the struggles in the path from tolerance to acceptance, which may not be complete even today, and help us assess the changes in gay culture over the last forty years.
Stonewall-centered analyses of the gay liberation movement (not that this was at all clear in 1971) neglect the fact that much of its legacy in the United States derives from events in California, which provides a vantage point to assess the development of identity politics among LGBT Californians and the shift from identity politics to a civil rights/human rights perspective. You’re probably familiar with a basic outline: Stonewall – Declassification – Harvey Milk –AIDS –Bowers v Hardwick -- ACT UP – DADT – Colorado’s Measure Two and Romer v Evans –Lawrence v Texas and the concurrent Marriage equality/DOMA debates. Of these eleven milestones, one is decidedly identified with California and two -- the response to the AIDS crisis and the marriage equality debates – involve California as one of the many sites in the US where they played out. Much of the history of LGBT California is still hidden. When a column on the impact of World War II on the 60th anniversary of Pearl Harbor by a reliable reporter in the San Francisco Chronicle doesn’t mention the influx of gay men and lesbians to the Bay Area as one of the effects, you know there’s a problem.
We start before Stonewall. We know from the work of historian John D’Emilio that the theoretical underpinnings of the gay liberation movement were established in the early 1950s, when Harry Hay and several likeminded men formed the Mattachine society in the Silver Lake hills of Los Angeles. Mattachine won a significant victory against LAPD in June 1952 when one of its founders, Dale Jennings, a victim of police entrapment, had the charges against him dropped after a jury split 11-1 to acquit. This didn’t lead to a major movement because Hay had been a member of the Communist Party of the United States, and the founders of Mattachine found themselves under fire by the House Un-American Affairs Committee during the height of McCarthyism. Mattachine survived, but as a much less activist organization.
Liberation movements in San Francisco started slowly as well. In 1953, Mattachine moved its headquarters to San Francisco, and in the same year, Phyllis Lyon and Del Martin established the Daughters of Bilitis, an equivalent organization for Lesbians. Two years before this, the California Supreme Court had overturned the revocation of the liquor license of the Black Cat, a bar in San Francisco’s North Beach district that had been accused of being a “hangout for persons of homosexual tendencies,” ruling that the government couldn’t prohibit people from going to a bar as long as they acted properly. This left a loophole that allowed bars to be harassed through the 1960s.
The Black Cat, however, served as a platform for one of its waiters, Jose Angel Sarria, who performed in drag, who concluded his performances by asking the crowd to stand and sing “God Bless Us Nelly Queens,” and who took the unheard-of step of running for the San Francisco Board of Supervisors in 1961.
When Sarria ran, the election was for five at-large seats, voted on citywide; he said he ran to show “it could be done.” Sarria was the first out gay to run for public office in the United States. His campaign insisted “Gay is Good,” (the post-Stonewall message of gay liberation) and he won 5,600 votes, finishing ninth. Although he did not win a seat on the Board, his campaign demonstrated the potential strength of a Gay voting bloc.
This led, in part, to the founding of the Council for Religion and the Homosexual, a coalition of religious and homosexual activists built by the Glide Memorial Church in the Tenderloin district of San Francisco. A dance sponsored by the Council on January 1, 1965 which was raided by the police brought the existence of police harassment to the attention of the larger community
as did San Francisco’s own version of the Stonewall riots. Transgender individuals and gay street hustlers congregated at Compton’s Cafeteria in the Tenderloin, and on an unusually hot August night in 1966, when the manager called the police to clear a rowdy group, the habitués of the cafeteria rioted.
The transgender historian Susan Stryker explains that this “was the first known instance of collective militant queer resistance to police harassment in United States history.” Why didn’t any of this have resonance nationally? John D’Emilio believes that
the city’s situation was too unique, gay men and lesbians still too isolated and invisible, for it to have any more than a local effect.
It did, however, set off a migration west that coincided with the following Summer of Love.
The rudiments of gay liberation were already present in California by June 1969, when the Stonewall Riots occurred.
In March 1969, Willie Brown, a state assemblyman who represented San Francisco, introduced a bill to legalize private sexual conduct in California (at this point, only Illinois had done so), basing the bill on the right to privacy.
In Los Angeles, just as in New York, Morris Kight, a longtime peace activist, and a group of seventeen men formed the Los Angeles Gay Liberation Front, and set as their first project a restaurant in then-unincorporated West Hollywood, Barney’s Beanery, which was one of the few restaurants open late and in which its owner, Al Held, had posted a sign.
Demonstrations started in January 1970, as Held protested that he had never denied service to a gay person; the sign finally came down in April, although it was replaced soon after and taken down several times until 1984, when the first mayor of the newly incorporated city, Valerie Terrigno, took it down for good.
Brown’s privacy strategy was strengthened in November 1972 when Proposition 11,
coauthored by state senator George Moscone, who also represented a San Francisco district, and assemblyman Kenneth Cory, a Democrat from Garden Grove in Orange County, which amended the California state constitution to add the word “privacy” to the inalienable rights possessed by California citizens, passed by an overwhelming margin.
Decriminalization didn’t pass, although Brown introduced it in every legislative session, until 1975, when George Moscone, by now Senate majority leader of the state Senate, helped push through the Brown bill by having the doors of the Senate chamber locked until Lieutenant Governor Mervyn Dymally flew to Sacramento from Denver to break the tie.
While the California legislature was debating decriminalization, the American Psychiatric Association, under pressure from gay and lesbian activists and professionals within the organization, formally dropped homosexuality from its list of psychiatric disorders in 1973. This paved the way for municipalities to add “sexual orientation” to the list of characteristics against which discrimination was prohibited, and this created a backlash. The first of these famously took place in Florida when Miami-Dade County passed an ordinance making it illegal to discriminate based on sexual orientation in employment, housing or public services. This met resistance from conservative groups, including a group, Save the Children, founded by Anita Bryant
a singer and former Miss America contestant who at the time was the national spokesperson for Florida Orange Juice; the ordinance was repealed 69-31. In California, voters in San Jose/Santa Clara County repealed legislation passed by local elected officials that protected gay rights, and voters in Davis, California, rejected a measure that would have instructed the city council to adopt a gay rights ordinance.
San Francisco resisted these trends. In 1971, a majority of the Board of Supervisors of the City and County voted to support Willie Brown’s decriminalization bill. Richard Hongisto, a gay-friendly policeman, left the department in November 1972 when he was elected Sheriff in an election that showed the power of gay votes, although the gay candidate for the board of Supervisors, Rick Stokes, didn’t win election. Harvey Milk, months after moving to San Francisco from New York, ran in 1973, and didn’t win his election either.
He finally became the first openly gay person to win election to the Board of Supervisors in 1977, when San Francisco began to elect supervisors by district, the year after George Moscone won a runoff election to become Mayor of San Francisco in an election he could not have won without gay votes.
In November 1978, California voters were presented with the “Briggs Initiative,” a referendum offered by the opportunistic politician John Briggs that would have banned gay men and lesbians from teaching in the public schools. The initiative stated that a school board “shall refuse to hire as an employee any person who has engaged in public homosexual activity or public homosexual conduct, should the board determinate that said activity or conduct renders the person unfit for service.” It defined “public homosexual conduct” as “advocating, soliciting, imposing, encouraging or promoting private or public homosexual activity directed at, or likely to come to the attention of schoolchildren and/or other employees,” adults who might be squeamish about such things.
The opponents of the proposition were able to convince Ronald Reagan, preparing for his 1980 run for president, that it was “a question of government meddling in private life,” and Reagan in turn issued a statement that said the proposition “has the potential for real mischief” and “the potential of infringing on basic rights of privacy and perhaps even constitutional rights.” The bill was defeated by a 58-42 margin, 3.9 million no votes to 2.8 million yes votes.
Three weeks after the defeat of Proposition 6, Dan White, a San Francisco County Supervisor who had resigned his seat and almost immediately changed his mind, learned from a reporter that he would not be reappointed. The next day, as you probably all know, White went to City Hall, climbing in through a window to avoid the metal detectors, and shot and killed George Moscone and Harvey Milk
In doing so, White created a martyr and a symbol for the maturing gay rights movement. I’m sure you know about the manslaughter verdict and the night of rioting that followed the verdict too.
The scholar Michael Bronski views the 1970s as an era in which “the diverse LGBT community was able to put aside its internal differences to fight a common enemy,” in this case continued repression and attacks by social purity groups.
The attacks by social purity groups continued through the 1980s, but the LGBT community faced an even more ominous enemy, the disease that we now know as acquired immunodeficiency virus (AIDS), which was first detected among gay men. This led to the creation of gay men’s health groups like the San Francisco AIDS Foundation and AIDS Project Los Angeles, but AIDS also created fear among the larger community. By 1986, the right-wing extremist Lyndon LaRouche drafted and collected signatures for Proposition 64 which would give state authorities the ability to quarantine people with HIV, and keep HIV “carriers” from working in schools or any place where food was handled.
By now the LGBT community in California was adept at raising money and enlisting allies, like the Republican governor George Deukmejian, who called the proposition “wholly unnecessary and unwarranted.” This lost by a margin of 71 percent to 27 percent. Gay and lesbian rights, however, took a step back in 1986 when the United States Supreme Court found (by a 5-4 margin) in Bowers v Hardwick that the right to privacy did not encompass homosexual acts between adults, upholding a Georgia law that prohibited them.
Californians did not have to vote on any measures in which voters amended the state constitution to bar the state or any government within the state from passing laws or regulations that protected gay rights, but one of these measures in another state made it to the Supreme Court and changed the trajectory of the gay and lesbian rights movement. When, in November 1992, the citizens of Colorado passed Amendment 2 by a 52-47% margin, the campaign for which framed the civil rights of gay men and lesbians as “special rights” and suggested that defeat of the measure might lead to affirmative action programs,
the state courts stayed the measure in order to assess its constitutionality. In Romer v. Evans (1996), Colorado argued that, since gays and lesbians were not a “suspect class,” the measure should stand; nevertheless, the Colorado Supreme Court upheld the lower court’s stay 6-1, arguing that the measure violated the fundamental right of gays and lesbians to pursue their political interests in state and local legislatures. The United States Supreme Court upheld the Colorado Supreme Court by a 6-3 vote on the grounds that Colorado had not been able to show any rational basis for enacting the measure. The protections Amendment 2 eliminated – job protection -- had been passed by the California Legislature in 1991, but Governor Pete Wilson, claiming such protections would be burdensome to small business, vetoed the bill, which prompted demonstrations involving up to 50,000 people all over the Los Angeles area; in 1992, Wilson signed a similar bill into law.
The Romer decision followed two events that contributed to another round of backlash. The Clinton administration had attempted to reverse rules that kept out gay men and lesbians from joining the military, and the outcry of outrage resulted in the “don’t-ask-don’t-tell-don’t-pursue” policy. Then the Hawai’i Supreme Court, in May 1993, held that denying marriage licenses to same-sex couples would be unconstitutional unless the state could show a compelling reason to do so. The Hawai’i legislature promptly held hearings and in 1994 banned same-sex marriage in the state. This was confirmed by a referendum which amended the state constitution to “reserve marriage to opposite-sex couples,” approved by 69% of Hawaiian voters in 1998.
This was one of 40 referenda passed by the states to forbid same-sex marriage; California was among these, passing Proposition 22, the Knight Initiative (Pete Knight, a Republican state representative from Palmdale, north of Los Angeles, has a gay son)
which stated “Only marriage between a man and a woman is valid or recognized in California,” by a 61-39% margin, in 2000. The federal government, at this point with Republican majorities in both the House of Representatives and the Senate, passed the “Defense of Marriage Act” with serious bipartisan margins (342-67 in the House, 85-14 in the Senate), and President Clinton signed it 21 September 1996.
In 2003, the Supreme Court revisited the question raised in Bowers v. Hardwick in Lawrence v. Texas, and held by a 6-3 vote that criminalizing same-sex acts “demeans the lives of homosexual persons,” thus voiding the 1973 Texas Homosexual Conduct Law and repealing all state laws that made same-sex acts criminal. While the majority opinion made no explicit claims that changed the status of gay men and lesbians beyond decriminalization, a dissent by Justice Antonin Scalia warned,
What justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.
The focus on same-sex marriage then shifted to California. (22) On February 12 2004, Gavin Newsom, the mayor of San Francisco, in what was called an act of civil disobedience, asked the city and county clerks to remove all reference to gender from marriage licenses.
Five days later, the California Supreme Court ordered a hearing on the issue on March 29. The Court stopped the marriages on March 10, after 4,161 same-sex couples had been married, held hearings on May 26, and ruled by a 5-2 margin on August 12 that Newsom had overstepped his authority in ordering same-sex marriages to be performed, nullifying the marriages that had been performed but they kicked the matter back to the appellate courts.
While the same-sex marriage case wound its ways through the California courts, the state legislature – twice -- passed bills which allowed same-sex marriage in the state, both of which Governor Schwarzenegger vetoed, citing the will of the people in 2000. Nevertheless, the Court issued a ruling May 15 2008 that gay men and lesbians could marry in California starting June 17.
The 4-3 ruling, which drew on the 60-year old ruling in which the court removed the prohibition of interracial marriage, found that the state had no compelling interest in differentiating between opposite-sex and same-sex couples, and concluded that
in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.
While the Court was deliberating, opponents of same-sex marriage in California had been gathering signatures for a constitutional amendment reading “Only marriage between a man and a woman is valid or recognized in California.”
(Yes, I know I used this in the marriage paper. It's one of my favorites.)
Proposition 8 passed by a 52-48 margin, even though polls had shown it losing, even though the majority of newspapers in the state editorialized against it, and even though it had been renamed
“Eliminates the right of same-sex couples to marry,” and became law upon passage.
The recriminations began almost immediately, as the debate over marriage equality addressed the contentious question of whether gay rights should be considered civil rights. The voters of California had rendered the state’s gay men and lesbians second-class citizens, and the people who voted for the proposition became targets: as a resident of San Francisco said, “If I voted against your social group having equal rights, you’d be sore too. You might be lovely people, but you voted in favor of discrimination.” What made this even more difficult is that the vote identified the importance of drawing a clear line between religion and government, since many of the supporters of Proposition 8 were pushed to vote for the amendment by their religious leaders. The Los Angeles Times editorialized that the No on 8 campaign had been lulled by poll numbers “until it discovered that the Yes on 8 side was raking in millions from Mormons and members of other churches.”
As James Brosnahan, the author of The Trial Handbook for California Lawyers, pointed out in an op-ed piece in the San Francisco Chronicle,
historically, marriage was used as a method of oppressing a despised group . . . In Ireland, for 150 years, the penal laws provided that no Protestant could marry a Catholic;
he described the post Proposition 8 situation as a “visible, constitutional, embarrassing injustice.”
Finally, several groups sued on the grounds that the amendment constituted a serious change to the state constitution which would require more than a simple majority vote, and the California Supreme Court held hearings on March 5, 2009. The court was interested in two issues: the right of the people to change the constitution and the status of the 18,000 couples who were married while same-sex marriage was legal. With regard to the marriages, Chief Justice Ron George “suggested the validity of the earlier marriages was purposely omitted from the ballot initiative as a campaign strategy to increase the likelihood of its passage,” while Justice Carol Corrigan, who had voted in the minority on the gay marriage decision, responded to an assertion by Kenneth Starr, the attorney for the proponents of Prop 8 and the Independent Council who investigated the Clinton Administration, that the intent of the proposition was to ban recognition of all same-sex marriages, demanded, “If Californians can’t rely on what this court says . . . who should they ask?”
The fate of Proposition 8 seemed to be secure during the hearing, as several of the judges, most notably Justice Joyce Kennard, stated their support of the initiative and referendum process. Judge Kennard, addressing lawyers seeking to overturn the proposition, said,
You ask us to willy-nilly disregard the right of the people to change the constitution of the state of California, But all political power is inherent in the people of California.
It also seems that we are back to the problem with referenda on rights; the Los Angeles Times live-blogged the hearing, and this is its report on the “rights” colloquy:
An interaction between Chief Justice Ronald George and Kenneth Starr, who is defending Proposition 8, gets to the heart of the argument. Starr argues that voters have an inalienable right to amend the state constitution as they see fit through simple majority vote, including "things that tug at the equality principle." But George leans in on the question and asks whether, if Proposition 8 had specifically said that homosexuals had no right to form a family relationship or raise children, that still could be done by amendment? Starr replies yes. George pursues it further, asking if California voters could remove the right to free speech? Starr says yes.
Enter Theodore B. Olsen and David Boies, the attorneys who, on opposite sides, took Bush v. Gore to the Supreme Court in 2001.
In the case, they acted together for the plaintiffs, two same-sex couples who argued in Federal Court that Proposition 8 violated their constitutional rights to due process and equal protection. The trial was unusual insofar as the governor and the attorney general of California refused to defend Proposition 8, and the defense was thus conducted by the proponents of the proposition; it was also unusual because this was the first trial that would be based on findings of fact concerning evidence supporting California’s refusal to recognize same-sex marriages, concerning California’s interest in differentiating between same-sex and opposite-sex unions, and concerning whether the proposition enacted “a private moral view without advancing a legitimate government interest.”
Based on an extensive amount of testimony presented by the plaintiffs with almost no refutation from the proponent-defenders, Justice Vaughn Walker, who was the subject of some controversy throughout the proceedings, found Proposition 8 unconstitutional in an opinion filed August 4 2010. He wrote that it violated due process because the freedom to marry is recognized as a fundamental right, that domestic partnerships do not satisfy California’s obligation to allow the plaintiffs to marry, and that it has no legitimate or compelling reason to do so.
With regard to equal protection, Walker found discrimination based both on sex and on sexual orientation, writing “Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause, as excluding same-sex couples from marriage is simply not related to a legitimate state interest.” He found that the proposition amended the California Constitution to enshrine the notion that opposite-sex couples are superior, and that it was hence unconstitutional because it created an unequal class of people, thus violating equal protection. Thus, he invalidated Proposition 8.
The order was stayed twelve days later, and a three judge panel of the Ninth Circuit heard arguments from both sides in December 2010.
Most of the hearing concerned the issue of whether the proponents of Proposition 8 had standing to bring an appeal, but the remainder of the hearing was much more focused on the taking away of rights and the issues raised by Romer v Evans, with the proponent-defenders trying to make the case that denying marriage to a class of people does not separate them from the law and the Court replying that voters taking away rights from a class of people was taking away rights. The hearing concluded with the Ninth Circuit panel asking the California State Supreme Court if, according to state law, the official proponents of a ballot initiative have standing to appeal a decision in the absence of a defense by the state. The California Supreme Court held hearings on this issue September 6, 2011 and concluded the proponents did have standing early in December, and the Ninth Circuit held another hearing to tie up loose ends December 8, 2011. I had hoped they would conclude the case before this presentation, but no In their decision, they punted the case to the next level with a VERY limited opinion, and we wait now to see what the next level will be. I'm hoping for an en-banc hearing, because I think our best chance of getting DOMA declared unconstitutional is with one of the DOMA cases.
So forty years after Homosexual, it’s difficult to say gay men and lesbians have full acceptance in all of California, but it’s much easier to say that there has been a shift in our approach to citizenship from identity politics to a civil rights/human rights perspective. What might have been called assimilationist (or hetero-imitative) during the 1970s is now an appeal to the equal protection under the law offered by the 14th Amendment.