The ACLU: Then and Now

February 28, 2002

Looking Back: Lesbian and Gay Rights, AIDS, and the ACLU

By Matt Coles

In the fall of 1996, Steve Shapiro, the Legal Director of the ACLU, asked me to talk to the ACLU's National Board of Directors about the U.S. Supreme Court's decision in the Amendment 2 case, which the ACLU's Lesbian and Gay Rights Project had handled with Lambda Legal Defense, the Colorado ACLU and another local group. The decision overturned a ballot initiative that would have eradicated all of the state's local gay rights laws and prevented even the state itself from passing any in the future. In doing that, the Court ruled for the first time that the United States Constitution does not allow the government to justify discrimination against lesbians and gay men with dislike or disapproval.

I knew the Board would be pleased. It's not every meeting, especially not these days, that it hears about a landmark Supreme Court decision upholding civil rights. When was the last time it heard about one in an entirely new area?

I don't think I will ever forget the Board meeting that day. I had barely begun speaking when it began to hit me, so strongly it seemed almost palpable: a wave of pure joy cascading across the room. These folks were not merely happy about a job well done; they were not just gratified that an important idea had finally won acceptance on the Court. The women and men of the ACLU Board were thrilled because winning this case about equality for lesbians and gay men was something they cared about deeply, not just in their heads, but in their hearts. To the Board, this was not just a victory for lesbians and gay men; this was "our" victory.

The Beginning - 1940

It wasn't always quite that way. The ACLU made a great start; its first "gay rights" case predated the modern gay movement by almost thirty years. In 1940, the Union defended Lillian Hellman's play The Children's Hour against attempts to ban it because it had "lesbian content."

But in the early and mid 1950s, the national ACLU decided not to oppose the federal government's policy of firing gay men and lesbians as supposed "security risks." And in 1957, it decided that laws that made sexual intimacy a crime for lesbians and gay men could not be constitutionally challenged. (That judgment shouldn't be seen as more myopic than it was; it would be six years before the U.S. Supreme Court decided that the U.S. Constitution protected privacy under any circumstances.)

By 1963, the ACLU had repudiated both of these stands, and in typical fashion, jumped into the fray with a righteous passion. In that year it brought its first important challenge to federal civil service rules which allowed lesbians and gay men to be fired on the basis of sexual orientation. It took twelve years, but the U.S. Civil Service Commission eventually changed those rules in response to another ACLU sponsored case. Also in 1963, the ACLU brought its first challenge to a state sodomy law.

The '60s

ACLU affiliates actually jumped into the fight for gay rights well before the ACLU repudiated its stand on security clearance and sodomy. In the mid "50s ACLU affiliates challenged police raids on a gay bar. In 1957 the ACLU of Northern California challenged the arrests of Lawrence Ferlinghetti and Shigeyoshi Maurao for selling Alan Ginsberg's poem "Howl."

The ACLU dockets of the '60s read like primers on just how bad things were only thirty years ago. The "Howl" arrests were hardly isolated incidents; censorhip was common. And police didn't just raid gay bars. They shuttered them, particularly if they allowed people to dance or, god forbid, hold hands. They also sat outside bars and took down license plate numbers to intimidate people into staying away. (They were still doing that when I moved to San Francisco in 1974.)

The early '60s saw ACLU challenges to another favorite government scam: "sting" operations designed to entrap gay men into making passes at police officers. It would be years before those operations would cease in some parts of the U.S. Throughout the '60s the ACLU fought government attempts to deport lesbians and gay men. Those efforts culminated in the first U.S. Supreme Court case on gay rights, Boutillier v. The Immigration and Naturalization Service. We lost.

All of this happened before Stonewall.

Deja Vu All Over Again

By the early 1970s, the issues were changing. Employment discrimination cases became more common. The ACLU brought its first challenge to an anti-gay military policy in 1970.

Even more interesting, issues that are still hotly contested today started appearing on ACLU dockets in the '70s. In 1972, well ahead of its time, the ACLU brought the first challenge to a ban on same-sex marriage. Two years later, the California ACLUs formed the lone opposition to the first state law passed explicitly to ban same-sex marriage. The ACLU tried another major push on lesbian and gay relationships in the early 1980s, backing the nation's first domestic partnership law in San Francisco and filing a law suit aimed at forcing recognition of domestic partners in bereavement leave plans. We lost the case, and the law was vetoed.

Lesbians and gay students may be the hot issue of the 1990s, but in 1973 the ACLU took on the defense of a much honored high school teacher in Washington who lost his job for being gay. Although we lost the Gaylord case, we forced the University of Mississippi in 1977 to recognize a lesbian and gay student group. And in 1978, we helped to win one of the greatest lesbian and gay rights victories of all times when the voters of California overwhelmingly defeated the Briggs Initiative, which would have made it legal to fire teachers and school workers for being lesbian or gay, as well as anyone who said anything in support of them.

The Dade County Defeat

To be sure, the legislative scene was something of a mixed bag. Beginning with the infamous Anita Bryant campaign in Dade County, Florida, cities across the country in the '70s and early '80s repealed gay rights laws. But in 1980, Wisconsin passed the first statewide law against employment discrimination based on sexual orientation. In the '70s and early '80s, twenty-one states got rid of sodomy laws, and in a 1980 ACLU case, New York's highest court struck down its sodomy law as a violation of the right to privacy. It's fair to say that the '80s began as a time of great optimism.

And so it was with the brightest of hopes that the ACLU took on the case of Michael Hardwick. Hardwick had been arrested in his own bedroom for making love to a man. The police officer who arrested him had used a flimsy pretext to gain entry to the apartment. Could there have a been a more vivid illustration of why "sodomy" laws violate fundamental notions of privacy?

As the Hardwick case worked its way through the federal courts, the ACLU decided that the rights of lesbians and gay men were likely to be one of the most important civil liberties battlegrounds in the '80s and beyond. It began work to set up a special Lesbian and Gay Rights Project in the ACLU's national office. A generous gift from Jim Hormel finally made it possible to launch the Project. The ACLU recruited Nan Hunter, one of the nation's outstanding reproductive rights lawyers, to run it and the Project opened in June 1986.

One week later, the Supreme Court decided Bowers v. Hardwick. It was not just a loss; it was devastation. Making no effort to conceal its contempt for lesbians and gay men, the Court brushed Hardwick's privacy claim aside, finding "no connection" between the intimacy lesbians and gay men share with their partner and intimacy between married couples.

Meanest Supreme Court Decision in 50 years

It was without doubt, the meanest, most vicious decision handed down by the Court in 50 years. The Court's treatment of lesbians and gay men was not lost on the lower federal courts. You could almost hear their doors closing on virtually every kind of case involving gay people.

And of course, it was in the '80s that the AIDS epidemic emerged. AIDS brought almost incomprehensible agony and death to the gay men of America. It also gave those who had always hated lesbians and gay men a supposed justification to declare a social war on lesbians and gay men.

The Epidemic

In California, within thirty short months, there were three statewide ballot initiatives that would have effectively imposed a quarantine on people with AIDS. The last, the Dannemeyer Initiative in 1988, confronted a community exhausted from fighting a savage disease, an unpredictable legislature and its two LaRouche sponsored predecessor initiatives. The ACLU swung into action, organizing the campaign, getting public health and medical authorities to join the opposition, doing legal analysis of the initiative, training speakers, etc. The Saturday before the election the state's best tracking polls said we were still behind. But we won.

As the epidemic wore on, our opponents began to focus more and more on the most vulnerable populations. Instead of a broad-based quarantine, they moved to segregate prisoners with HIV, to forcibly test people with mental disabilities, to fire health care workers with HIV, to forcibly test anyone accused of a crime, to remove children with HIV from schools, and to fire teachers with HIV. The ACLU responded to all those efforts, often with litigation. There were prison segregation cases in Alabama and Sacramento, health care worker cases in San Francisco and New Orleans, testing cases in Omaha, San Francisco and Chicago, and school cases in Orange County, Hayward, California, and in Florida and New York.

ACLU and the ADA

The ACLU focused much of its energy on a more comprehensive answer: working to pass the Americans With Disabilities Act and make sure that it covered people with HIV. The ACLU's lobbyist in Washington was one of the primary drafters of the ADA. By the time Congress passed it in 1990, things were definitely looking up. We now had what we thought was comprehensive protection against discrimination for people with HIV. Moreover, after a series of pitched battles, mostly in state legislatures, all of the major states had rejected mandatory name reporting and coercive partner notification schemes.

Those are victories that are in peril today. Conservative federal courts in the late '90s have appeared at times to be running a campaign to dismantle the ADA, threatening to destroy our most important protections from discrimination. States, egged on by the Federal Centers for Disease Control, have begun to adopt the very name reporting and partner notification programs they rejected as unsound a decade ago.

But that was a decade away. The '80s appeared to be ending on a distinctly upbeat note. A federal appeals court set aside the discharge of Perry Watkins, and while it did not invalidate the military policy in general, the court seemed like it might in the future. The New York Court of Appeals recognized domestic partnerships for apartment leases and rent control. And the San Francisco domestic partnership law was passed again, and this time, it was signed. Both cases and the new law were the work of the ACLU.

New Threats to Gay Civil Rights

Then a shock: the voters of San Francisco, in a low turnout election held just after the '89 Earthquake, repealed the domestic partnership law by a narrow margin. The next year, the voters would overrule that decision by a wide margin, and would reaffirm that decision by a landslide the following year. But the era of anti-gay initiatives had arrived.

In 1990, voters in Concord, CA removed lesbians, gay men and bisexuals from the protections of their civil rights law. The ACLU successfully challenged that initiative in court. And the ACLU helped lead the successful opposition to a similar measure in Oregon in 1992. But then there was Colorado, where voters passed Amendment 2 which changed the state constitution to ban all gay rights laws forever.

That law led to the challenge described at the beginning of this piece. The Supreme Court's eventual decision in Romer v. Evans is undoubtedly the greatest gay rights victory in court of all time. The Court overturned Amendment 2 and restored the power of states and cities to pass gay rights laws. Even more stunning, it swept aside the essentially political argument that gay rights laws were "special rights" by observing that there is nothing "special" about the right to participate in day to day life on an equal footing with everyone else. But maybe most important of all, the Court issued an opinion that treated lesbians, gay men and bisexuals with respect. The legal and political damage done by Bowers v. Hardwick was over.

But of course, the fight for lesbian and gay rights is not. The Colorado case did not end the fight for gay rights; it simply ensured that we could keep fighting in the courts and in the legislatures.

Ain't Over Yet

And keep fighting we will. Along with Lambda Legal Defense, the ACLU challenged the charade that is "don't ask, don't tell." That we have not succeeded in striking it down so far is not a surprise; the courts have never invalidated a military policy justified on the basis of effectiveness. It will take some time. While Lambda challenged Hawaii's law against same-sex marriage, ACLU affiliates across the country fought the difficult and often lonely battle agaisnt new state laws banning same-sex marriage.

Chai Feldblum, currently director of the federal legislation clinic at Georgetown University Law Center, played a crucial role in authoring the Americans with Disabilities Act (passed in 1990) during her tenure as the Project's Federal Legislation Director.

With the National Center for Lesbian Rights, the ACLU is challenging systemic discrimination against lesbian and gay youth in schools in Morgan Hill, California. With the Gay, Lesbian & Straight Education Network, the ACLU has just published answers to the most often asked questions about policies against discrimination and harassment in schools.

The ACLU is challenging bans on adoption by lesbians and gay men in Arkansas, Florida and Utah. Last year, the ACLU took on discriminatory custody rules in Mississippi, Alabama, North Carolina and Virginia.

In 1998 alone, the ACLU succeeded in reinstating a lesbian volleyball coach in rural Utah, in helping convince a federal judge in San Francisco that the city's law requiring contractors to respect domestic partnerships is valid, in striking down two sodomy laws in Maryland, in helping to strike down another in Georgia and repeal still another in Rhode Island, and in passing an employment nondiscrimination law in Nevada.

And we'll keep at it. Until the ADA and the people with HIV it should protect are safe. Until equality and dignity for our families is not an aspiration, but reality. Until it is all over, and the guarantees enumerated in the Bill of Rights apply equally to all of us.

Through a Glass Darkly: Looking Ahead

Predicting the future is a dicey business. Who knew that the bright future which appeared to be just ahead at the end of the '70s held so much agony? Who knew, when we were hit with the wave of initiatives designed to prevent lesbians and gay men from being protected by civil rights laws, that the upshot would be our greatest Supreme Court victory ever?

Recognizing the hazards of prediction, I'll keep this focused on just the next few years. And I'll ask that you be kind if some of my crystal gazing eventually proves to have been myopic.

Relationships and Kids

Family will continue to be a big issue. More than anything else, the myth that we lead isolated, lonely lives, that we are incapable of serious love and commitment, remains the philosophical centerpiece of political efforts to marginalize lesbians and gay men.

Moreover, the yearning for family, the yearning to share the unexpected delights, the disappointments, to simply share life itself with another, perhaps with children, is nearly universal. Nothing hurts lesbians and gay men more than laws that make putting a family together tougher than it needs to be.

By this point, it's clear that social recognition of lesbian and gay relationships is inevitable. That doesn't mean easy. No matter how the remaining lawsuits aimed at legalizing same-sex marriage turn out, the marriage battle will go on for a long time. When some state allows lesbians and gay men to marry, the U.S. Constitution is not going to automatically require that every other state allow its residents to go there, marry, and bring their marriages back with them.

Much of the progress on relationships will come via domestic partnerships. In what will be mostly political battles, more and more companies and cities will be persuaded to respect lesbian and gay relationships. Domestic partnership laws and policies will continue to be challenged, but we'll win most of those court battles.

It also seems inevitable that state governments will eventually be convinced to allow lesbians and gay men to adopt children. America has tens of thousands of children who need the love and care of parents and are not getting it. Lesbians and gay men can give it. In the end, these simple facts will prove too much for the ideology of homophobia.

The False Consensus on Discrimination

We will never really begin to achieve equality for lesbians and gay men in America until most Americans think being free from discrimination is a civil right.

If you’ve read recent news stories on opinion polls, it's looking as if, on employment discrimination at least, we are as close to a national consensus as we’ll ever get. The numbers are deceiving. The polls tell us that over 80% of Americans think you shouldn't lose your job for being gay. But these numbers are part of a paradox. Over 60 percent of America also opposes laws to make discrimination based on sexual orientation illegal.

Part of the paradox is the result of dishonesty; being opposed to discrimination is an American platitude these days, at least in many parts of this country. Many of those who tell pollsters they are against discrimination really think lesbians and gay men should be given the boot, especially from "sensitive" jobs.

But another big reason for that paradox is people who don't think discrimination is a problem — some because they think it’s already illegal, many because they don't think they've ever seen it. We have to come to grips with the fact that discrimination against lesbians and gay men — on the job and elsewhere — does not look like race or gender discrimination. Gay men and lesbians are, for the most part, not barred entry to the workforce the way African Americans were and still are, and they don't hit glass ceilings the way women do.

Much more typically, lesbians and gay men are forced to conform to lies about their lives, lies that exact a terrible toll. Most people are incapable of hiding the fact that they have a family from those they work with day in and day out. Our challenge is to make Americans understand that this is what the absence of civil rights laws means for lesbian and gay Americans. Our challenge is to make people understand that it is not simply wrong to ask anyone to live a lie, it is very destructive.

And finally, our challenge is to move beyond employment, to begin exposing the wider patterns of discrimination in daily life. Only then will we convince America that freedom from discrimination because of sexual orientation is an important civil right.

Being An Adolescent Is Hard Enough

It’s obvious that kids, straight, gay, bisexual and transgendered, will continue to be a focus for the movement. Homophobia is easier to fight when a person is still deciding on basic values. And does anyone doubt that for most lesbian and gay people, adolescence is the hardest part of life?

Unless either Congress or the federal courts get a lot more conservative (and that, of course, is a possibility), we’re not likely to see a lot of lawsuits over gay clubs in schools. The current law is quite strong, so once students want to form a club, most schools are likely to give in with a little pressure.

But there will continue to be big fights about making schools safe for lesbian and gay students, and about openly gay teachers.

Talking about respect for gay students and being out as a teacher are two things most school boards would prefer not to deal with at all. They feel heavily pressured by the Right, which organizes parents to protest any respectful treatment of gay people in schools. They also feel heavily pressured by us, because we keep reminding them that they'll get sued if they let kids get harassed or if they try to force teachers into the closet to mollify parents. All too often, most school boards react by grasping for inertia. So we’ll have to work hard to move them to take positive actions.

The Crime of Love

"Sodomy" laws (I have always hated the name, which carries with it implications of a tawdry sin) are well on their way to becoming an historical curiosity. Still, they can't be ignored yet. The idea that they are not enforced these days is dangerously wrong. They are used to turn what would be at most boorish conversations among heterosexuals into serious crimes for gay men. They are used as a justification for separating lesbians and gay men from their children, or, in the most recent fashion, for visitation and custody orders that force lesbians and gay men choose between their partners and their kids.

But perhaps most important, they are used to disempower us in political debates. The cry that they make us criminals, while not technically right, remains a potent weapon against us when we seek the protection of civil rights and the recognition of domestic partnerships.

We have the strategy that will bring sodomy laws down. Five states (six when we began using the strategy) and Puerto Rico have laws that explicitly apply only to gay men and lesbians. 14 more have laws which, while they technically apply to all, are treated as if they applied only to gay men and lesbians. The idea is to go after these laws, sidestepping the question of whether the U.S. Supreme Court's 1986 decision upholding Georgia's law (which applied to all) was correct. We will argue instead that in the wake of the Court's 1996 decision striking down a ban on civil rights laws for gay people but not for others, constitutional equality does not allow states to say that the same act is legal for most but a crime for us.

We'll hitch our wagon to mainstream America's star, asking only for the same right to be intimate that the states give heterosexuals. Straight America is not about to start asking everybody to detail their sexual practices, not in legislative hearings, not in custody cases. If equal treatment is the rule, sodomy laws will die of their own accord.

The Last Word

If I've made it look like a tough fight, well, that’s unavoidable. It will be a tough fight. But a little perspective. We've made enormous progress in the 30 years since Stonewall, and that progress has accelerated astonishingly in the last decade. As long as we keep the pressure on, a just and fair society is neither a pipe dream nor something for the distant future.

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