September 1, 2010
It is no accident of history that much of the ACLU's early work on behalf of lesbian and gay rights involved the First Amendment. Lesbians and gay men instinctively saw that the key to their liberation lay in that amendment's broad protection for their speech, for their freedom to associate and dissent, for genuine expression of their humanity. They knew that speaking out about the 'love that dares not speak its name' was essential to their ultimate freedom and dignity. And who better than the ACLU to defend their right to speak out?
In fact, it was not long after the ACLU's founding in 1920 that a case involving lesbian and gay rights came to the organization's attention. In 1936, Lillian Hellman's stage play The Children's Hour, a critical and financial success on Broadway, was headed to Boston but was banned by the city's public censor because of 'lesbian content.' The ACLU helped the play's producer challenge the ban in federal court. While they did not prevail, the celebrated case and the public outcry that followed the court ruling led to the first serious limitations on the public censor.
Some two decades later, the ACLU came to the defense of City Lights Bookstore owner and prominent Beat poet, Lawrence Ferlinghetti for publishing Allen Ginsberg's Howl and Other Poems, which was deemed obscene due to its unapologetic references to gay sex. The closely watched trial, in which ACLU lawyers cited Balzac, Shakespeare and the Bible as examples of works with 'erotic' content, resulted in a complete acquittal.
From that time on, the ACLU would have a regular stream of LGBT cases around the country, covering everything from laws against gay bars to laws against crossdressing in public, early challenges to sodomy laws, and the first same-sex marriage case (in 1971), Baker v. Nelson.
As the early gay rights movement advanced, clashes with law enforcement often occurred. In one notorious case in 1965, the San Francisco Police Department tried to shut down a fundraiser for the newly-formed Council on Religion and the Homosexual by scaring patrons away with floodlights and cameras, and, when that didn't entirely work, by 'inspecting' the hall repeatedly for code violations. The ACLU defended the event organizers after they were arrested for 'obstructing' the police in their efforts to intimidate guests. At the trial, ministers and their wives, who attended dressed in their Sunday best, supported the defendants; the jury took only 10 minutes to return a verdict of 'not guilty.' The raid, the surrounding publicity, and the subsequent trial opened the eyes of the public to the persecution faced by LGBT people. The event and its aftermath not only contributed to a diminishing of police harassment of gay people but also led to unprecedented structural changes: the appointment of a special liaison between the police department and the gay community and the formation of an LGBT community hotline to report police abuse.