Lesbian, Gay, Bisexual, Transgender, and Queer (or Questioning) (LGBTQ) rights did not become a national political issue until the summer of 1969, when patrons of a gay bar in Greenwich Village responded to a police raid with outrage in a series of incidents that became known as the Stonewall Riots. The following summer, the gay community in New York City held its first gay pride parade to commemorate the Stonewall Riots, an event that has been replicated in other cities around the world since that time. Stonewall is often viewed as the beginning of openness about homosexuality in American society, although violence against the gay community, and the criminalization of homosexual relations, continued for several decades after the event. Still, Stonewall began a debate in American politics about the treatment of gay Americans and the varying forms of workplace and other legal discrimination faced by this community. It is a debate that persists to this day.
In the Campaign of 1972, the Democratic National Convention adopted the first gay rights platform plank in American history. A majority of Democratic convention delegates viewed support for gay rights as consistent with the commitment of the modern Democratic Party to civil rights. The Republican Party approached gay rights not from the perspective of civil rights but from the perspective of morality. During the 1970s, the Moral Majority came to wield a far greater influence over the Republican Party; most members of this movement viewed homosexuality as inconsistent with biblical teachings, and as their role in the GOP coalition grew, so too did the GOP’s unwillingness to guarantee members of the LGBTQ community the same rights as heterosexuals.
During the early 1980s, the AIDS epidemic further complicated the gay rights debate. The fact that AIDS first appeared in the gay community raised public health questions about the gay lifestyle, and religious figures associated with the conservative movement, such as Pat Robertson and Jerry Falwell, were quick to suggest that AIDS might be a divine punishment for homosexuality. Gay rights was not a prominent theme in the Campaign of 1980. While Ronald Reagan openly courted the Moral Majority, he focused his efforts on abortion and traditional family values, and the first cases of AIDS were not reported until 1981. When Reagan’s close friend, actor Rock Hudson, died from AIDS in 1985, Reagan avoided discussing both the disease that killed Hudson and his friend’s closeted homosexuality. It has been noted that Reagan did not say the word “AIDS” until 1987. To the consternation of many conservatives, Reagan’s surgeon general, the pro-life physician C. Everett Koop, responded to the AIDS crisis by mailing a flyer to every American household outlining safe-sex practices, including condom usage. The threat of AIDS, the public discrimination that ensued, and the lack of federal funding for AIDS research during this era served to mobilize the gay community. Groups such as ACT-UP aggressively demanded public action by lawmakers. But because the community faced a very real public health crisis, most efforts focused on dealing with the crisis, and not on the expansion of rights more generally.
By the 1990s, the gay rights movement attempted to move beyond issues of AIDS funding; homosexual relations were still illegal in many states, and the Supreme Court had recently upheld the constitutionality of state anti-sodomy laws in Bowers v. Hardwick (1986). In the Campaign of 1992, Democratic presidential nominee Bill Clinton took up the cause of gay rights, promising that if he were elected, he would repeal the existing ban on gay people serving in the military. While Clinton’s pledge did not prevent him from being elected, he quickly ran into opposition from both Congress and the military, and eventually a compromise was struck in the form of “don’t ask, don’t tell” (DADT). Under DADT, if members of the military revealed that they were gay, they were subject to immediate dismissal. If they concealed their sexual orientation, and they were not “outed” by a colleague, they could keep their position. At the time, public opinion polls showed support for DADT as a compromise between an outright ban on service and a complete repeal of the ban.
By the Campaign of 1996, the Republican Party began to openly use gay rights as a wedge issue for mobilizing Democrats who were not comfortable with homosexuality (those social conservatives who might still be Democrats). The party platform explicitly opposed expanding civil rights or employment laws to prohibit discrimination on the basis of sexual preference or orientation. The Democratic Party platform, on the other hand, supported treating sexual preference and orientation in the same manner as sex, race, creed, religion, and national origin. In an attempt to defuse the conflict and reassure socially conservative Democrats that civil rights for gay persons did not mean that voters would soon be facing the prospect of same-sex marriages in their states, President Clinton signed the Defense of Marriage Act (DOMA) into law shortly before the election. DOMA provided a federal definition of marriage as a legal union between a man and a woman, precluding federal recognition of any same-sex marriage that might be recognized at a state level. While no state was actively considering marrying same-sex couples at this time, the measure seemed to be designed to thwart some of the fear tactics being used by opponents of civil rights for gays and lesbians—namely, that if these groups were given such protections, marriage demands would surely follow.
The 1998 murder of college student Matthew Shepard, who was kidnapped, robbed, assaulted, and tied to a fencepost on a freezing night in Wyoming, in part because he was gay, shocked the nation’s conscience and again raised questions about whether crimes against gay persons should be treated as civil rights violations. Two years earlier, in Romer v. Evans (1996), the Supreme Court had rejected an amendment to the Colorado Constitution that specifically prohibited laws to prevent discrimination against gays and lesbians. However, the decision did not serve to guarantee gay Americans explicit political equality. In addition to DADT, employment protection for gay persons was still unclear, many states prohibited gays and lesbians from adopting children, and same-sex marriage was not legal in any state. By the Campaign of 2000, though, public opinion had shifted. Discrimination in employment on the basis of sexual orientation was no longer socially acceptable to most Americans, and the debate now revolved around whether to grant gays and lesbians the right to marry or enter into civil unions.
In the Campaign of 2000, the Democratic and Republican parties continued to be sharply divided on gay rights issues. In an attempt to mobilize their conservative Christian base, the Republican Party platform included planks in support of traditional marriage, in support of the Boy Scouts of America’s right to exclude gays from its ranks, and opposition to DADT (the party preferred to reestablish the ban on service). Republicans also advocated a constitutional amendment to restrict marriage to heterosexual couples, which would prevent states from taking their own actions in support of gay marriage.
The Democratic Party, and its presidential nominee Al Gore, embraced the expansion of gay rights. Specifically, Gore criticized DADT for its lack of compassion and tolerance. Although neither Gore nor the Democratic Party was willing to go as far as to endorse same-sex marriage, the Democratic Party platform did call for the creation of civil unions for the protection of the legal rights of same-sex couples. Significantly, Gore supported Clinton’s decision to sign the DOMA, essentially denying gay couples the right to marry. Republican nominee George W. Bush did not equivocate on the same-sex marriage issue. Like the Republican Party platform, Bush rejected the legitimacy of any legal recognition of same-sex unions. Yet Bush did not make gay rights a central issue of his campaign, instead focusing on education reform as a cornerstone of his domestic agenda.
Things changed in the Campaign of 2004, as the Bush campaign pursued a reelection strategy that narrowly focused on a core base of supporters. This time around, Bush took a hard line on gay marriage, supporting a constitutional amendment that would bar gay marriage in any state. Democratic nominee John Kerry opposed a constitutional ban on gay marriage but also refused to support the legality of same-sex marriage, preferring instead to advocate for civil unions. Late in the campaign, Bush also expressed his support for state legislation allowing civil unions, despite the fact that the Republican Party platform specifically opposed both same-sex marriage and civil unions. Much more significant to the ultimate outcome of the election, the Republican Party coordinated with a number of state anti-gay marriage and anti-gay civil union initiatives to place defense-of-marriage constitutional amendments on state ballots during the presidential election in an effort to mobilize anti-gay marriage conservatives to turn out to vote. In the end, Bush easily won the popular vote and narrowly won the majority of electoral votes, which political analysts attributed to his ability to mobilize Christian conservatives in a number of key battleground states. Ironically, Bush’s vice president, Dick Cheney, later came out in support of same-sex marriage, as did Bush’s wife and the nation’s First Lady, Laura Bush, who was joined by their daughters.
The Campaign of 2008 was a more toned-down version of the previous campaign. While economic issues were at the forefront, the nominees were unable to avoid a discussion of gay rights. The Democratic Party and its nominee, Barack Obama, put in place a national outreach program for gay and lesbian voters, promising to focus on LGBTQ rights issues if elected. However, Obama did not support same-sex marriage. On the other hand, Republican nominee John McCain did not attempt to focus on gay rights. McCain expressed support for the continuation of DADT, despite numerous polls showing a lack of public support for the policy. McCain also opposed both same-sex marriages and civil unions, but he supported allowing gay couples to enter into contracts related to their relationships (although it was unclear what such contracts would be). McCain opposed a constitutional amendment to ban same-sex marriage as long as DOMA remained intact (although after the campaign, McCain’s wife, Cindy, and his daughter produced ads in support of gay rights and same-sex marriage). In the end, the economy, not gay rights, provided Obama with the issue that permitted him to define himself as the “change” candidate. However, Obama also received strong support (both financially and in terms of votes) from the LGBTQ community.
Once he was elected, the LGBTQ community expected Obama to move quickly to eliminate DADT, which he was reluctant to do. Instead, Obama commissioned a survey of the military and then pressured Congress to retract the rule, which occurred in the last days of 2010 in a party-line vote. The Obama administration later declined to defend the DOMA against further lawsuits, on the grounds that the law was unconstitutional, a move criticized by Republican lawmakers.
The social and legal environment changed dramatically by the time of the Campaign of 2012. Same-sex marriage had become legal in seven states. Polls suggested that for the first time, a majority of Americans supported same-sex marriage. Obama’s unwillingness to defend DOMA in court created the very real possibility that states that did not permit same-sex marriage might still be compelled to recognize such marriages if they were performed outside of their boundaries for persons who now resided there. The Republican Party’s response to these changes was to keep the proposed constitutional amendment to ban same-sex marriage in the party platform. In the 2012 primaries, Ron Paul was the only GOP candidate to oppose the amendment; the eventual Republican nominee, former Massachusetts governor Mitt Romney, supported the constitutional amendment and also expressed his opposition to civil unions (if they provided rights similar to marriage). While the GOP field was divided about whether to reinstate DADT, Romney opposed reinstatement. Democratic nominee Barack Obama, bolstered by favorable shifts in public opinion, came out in support of same-sex marriage during the campaign. It was a risk-free change in strategy for Obama; while most polls found that a slight majority of the public favored same-sex marriage, the rates were substantially higher among Democrats and independents (including groups viewed as more socially conservative such as African Americans, Latinos, and Catholics). Republican voters, on the other hand, remained overwhelmingly opposed in most polls, making support for same-sex marriage far riskier for GOP candidates. This was perhaps best exemplified by the gay combat veteran who was booed by the crowd at a GOP primary debate when he implied that ending DADT was a sign of progress—suggesting that in 2012, at least, some Republican voters felt little sympathy for the concerns of this community.
While same-sex marriage has historically been used as a wedge issue by Republicans in their bid to win over socially conservative Democratic voters, the dynamics of this issue appear to have changed in 2012. Now the Democrats were the party that was united on the issue, and the GOP was the party with more divisions (in particular, generational divisions and divisions between evangelical Protestants and other voters). Some Democratic strategists have suggested that slim Democratic margins in states like Ohio and Florida were bolstered by votes from the LGBTQ community, which heavily favored Obama. Others argue that voters who favor same-sex marriage tend to be quite liberal on a host of other issues as well, and so were likely to already be Obama supporters. There is insufficient evidence to demonstrate the narrow claim that enough of these voters were mobilized (rather than converted) to cast a ballot for Obama in 2012, although such an outcome is certainly theoretically possible.
In the aftermath of the 2012 election, federal courts overturned a series of state bans on same-sex marriage, vastly increasing the number of states where same-sex marriage was permitted. The legality of same-sex marriage in the United States was finally answered by the Supreme Court in Obergefell v. Hodges. While the ruling federalized same-sex marriage rights, it did not automatically provide parental rights for non-biological parents in same-sex relationships, nor did it provide nondiscrimination protections for the LGBTQ community, more generally.
Conservatives unhappy with the Obergefell decision attempted to minimize its effect using a similar strategy to that employed by religious and private-sector employers who opposed the contraception mandate in the Affordable Care Act. That is, they suggested that some individuals might have religious objections to same-sex marriage and thus should not be compelled to issue marriage licenses. Several states passed, or attempted to pass, sweeping legislation that granted religious objection status not only to religious institutions who objected to performing same-sex marriages, but also to any private business that did not want to accommodate same-sex couples (such as wedding photographers and bakeries). The laws are ostensibly modeled on the federal Religious Freedom Restoration Act, which protects individuals from violations of their religious freedoms by the federal government. But the state laws are substantively different. They are more broadly written in order to avoid specifically mentioning the LGBTQ community by name, and they do not protect individuals from religious discrimination by the government. Rather, they permit any religious organization, individual, or private business to claim religious discrimination from any activity arising from a transaction with another individual (rather than excluding those interactions to the government alone). Thus, they enable businesses that serve the public to deny service to any customer whose conduct a proprietor might find objectionable for religious reasons (someone from an opposing religion such as Islam; a woman dressed immodestly without a male escort; a person who is in the company of someone other than his or her spouse). Civil rights watchdogs argue that such laws potentially affect hiring (e.g., permitting an employer to refuse to hire Muslims or divorced persons), housing (e.g., landlords can refuse to rent to Muslims, Jews, or anyone whose behavior offends their religious sensibilities), and adoptions (in that it would permit private adoption agencies to refuse to work with gay couples). The Human Rights Campaign notes that such laws require that state governments have compelling interest before they may substantially burden a person’s religious practices. Yet these laws are seemingly in conflict with existing protections afforded citizens under the Civil Rights Act—not to be discriminated against as customers at a business, as renters, and as employees.
In Indiana, GOP governor Mike Pence confidently signed such a “conscience protection” bill (also referred to as a “religious freedom” bill) despite pressure from a variety of sources, including the business community, not to do so. Arizona governor Jan Brewer, also a Republican, had refused to sign a similar bill in February 2014 (under the threat of the loss of the Super Bowl). The ensuing public backlash forced the Indiana legislature to amend the legislation after the fact to ensure that businesses could not refuse customers service based on their sexual orientation. Arkansas’s conscience protection bill, following on the heels of Indiana’s, fell victim to a similar fate, particularly after pressure from Wal-Mart, the state’s highest-profile employer. North Carolina passed a narrow religious exemption bill that permitted public officials to recuse themselves from performing same-sex marriages or registering deeds, but which would then suspend them from performing all marriages for at least six months; it was passed over conservative governor Pat McCrory’s veto.
Moreover, the Hobby Lobby ruling, in which the Supreme Court was willing to grant a religious exemption to a nonreligious organization, has tended to make LGBTQ groups and their allies skeptical that any religious exemption will be narrowly tailored (even if it is originally written as such). In the summer of 2014, the ACLU and a host of LGBTQ organizations including Lambda Legal, the National Gay and Lesbian Task Force, the Transgender Law Center, and the National Center for Lesbian Rights all ended their support of ENDA, the Employment Non-Discrimination Act, on the basis of the religious exemption in the Senate version of the bill. A more comprehensive bill, the Equality Act, originally introduced in 1974, has now replaced ENDA. The Equality Act’s purpose is to add gender orientation and identity protections to existing legislation on civil rights (such as the Fair Housing Act, the Equal Credit Opportunity Act, the Civil Rights Act, and the Jury Selection and Service Act). It does not include religious exemptions that would permit discrimination against the LGBTQ community. The Act has yet to pass, and it has become a cornerstone of the LGBTQ community’s legal and political agenda.
In July 2015, the Equal Employment Opportunity Commission made a ruling in which it claimed that Title VII of the Civil Rights Act of 1964 prevented employment discrimination on the basis of sexual orientation. The commission argued that sexual orientation stems from discrimination on the basis of sex, which is in the language of the original law. The three-to-two ruling affects federal employees, and potentially private-sector employees who bring a suit to the EEOC; however, it is not binding on the courts. Currently, only twenty states and the District of Columbia have laws that prohibit employment, housing, and accommodation discrimination based on sexual orientation, and only nineteen have laws that prohibit such discrimination based on gender identity. New York and Delaware have nondiscrimination policies in effect as well, but there issued by executive order, not by statute. In New York and Delaware, the only protection that affects gender identity is public employment; public accommodation and housing protections apply to sexual orientation only. In Massachusetts, state law bars discrimination based on gender identity and sexual orientation in both employment and housing but only protects sexual orientation discrimination in public accommodations.
In the Campaign of 2016, all of the Democratic Party candidates expressed support for the same-sex marriage ruling, and for the expansion of rights for same-sex couples, including adoption rights and federal nondiscrimination legislation. The GOP candidates were generally critical of the Supreme Court ruling, although the candidates were divided about whether they were willing to accept the Court’s ruling and its consequences (Bush, Kasich, Rubio, Carson, Fiorina, Graham, Christie) or whether they favored attempts to undo the ruling via constitutional amendment (Walker, Huckabee, Santorum, Jindal, Cruz). Huckabee also favored reinstating DADT. Ted Cruz suggested that he would be quick to repeal the executive orders Obama had issued that prohibit discrimination by the federal government and federal contractors on the basis of sexual orientation and sexual identity. Both Jindal and Santorum have suggested that they would use executive orders to provide federal “conscience” protections. Overall, however, LGBTQ rights has appeared to be a topic that GOP candidates seem reluctant to discuss, which is consistent with the theory that such rights are now a wedge issue for the Republican party, and thus costlier for the GOP coalition than they are for the Democrats.
As gay and lesbian rights continues to openly move into the social mainstream, rights for other stigmatized groups have begun to make their way onto the political agenda as well. (Undoubtedly, the popularity of Laverne Cox in Orange is the New Black, and the transformation of Olympic decathlon champion Bruce Jenner to Caitlin Jenner, has helped to facilitate this dialogue.) In the summer of 2015, Defense Secretary Ashton Carter announced a study period to consider allowing transgender persons to openly serve in the military. Eighteen other nations already permit such troops to serve, among these Canada, which has done so since 1992, and Israel, which has permitted gay, lesbian, and bisexual soldiers to serve openly in its military since 1993 and openly transgendered persons to do so since 2013.
Nevertheless, those in the transgender community in the United States continue to experience discrimination because they lack basic civil rights protections that guarantee employment and fair housing to other groups. They are more likely to be homeless than the rest of the population, including the gay and lesbian community. They are also more likely to suffer from problems of addiction or to have untreated mental health problems such as depression, more likely to commit suicide, more likely to be incarcerated, more likely to be victims of assault, and more likely to be murdered, and they have a shorter life expectancy. The glamour of Caitlin Jenner’s affluent celebrity lifestyle more reflects a continuation of the life of white male privilege that she experienced for so many decades than it does the typical transgender experience in the United States, although her visibility has caused Americans to discuss the topic of gender identity in new ways and has helped to give the transgender community a public face. Ironically, Jenner is a conservative Republican; she has expectations of continued acceptance by that community. Whether she is able to soften attitudes of social conservatives toward those with nonconforming sexual identities remains to be seen.
See also Civil Rights Issue; Culture War; Wedge Issue
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