Homosexuality as a protected class
Barriers preventing the addition of
sexual orientation a protected class.
The concept of sexual orientation as a protected class was not widely
discussed until the middle of the 20th century. Laws criminalized homosexual throughout the U.S. and Canada
until the 1960s. Before pressure could mount to protect homosexuals under human
rights legislation, it was first necessary to at least decriminalize
Faith groups, mental health therapists and others condemned it
as an immoral practice, criminal act and/or a mental illness:
||Every state in the U.S., the federal government in Canada, and both
militaries once had "sodomy" laws or regulations against homosexual behavior -- some dating back more than a century.
"Sodomy" is a reference to the city of Sodom in
the Bible that some people believe God intentionally destroyed
because of their homosexual behavior. Other theologians interpret the
story differently. Some were worded so generally that they
would even criminalize consensual oral sex in private between married spouses as a "crime against nature." These attitudes in the U.S. did
not start to change until 1961.
||Almost all religious groups condemned same-sex behavior. It was not
until 1970, that the first large religious group
in the U.S. passed a resolution opposing laws which criminalized
homosexual behavior or discriminated against gays and lesbians. That was
the Unitarian Universal Association, arguably the
most liberal large religious denomination in North America.
||Therapists almost universally considered homosexuality to be a
mental illness, and perverted behavior. Change was partly triggered by
Evelyn Hooker whose 1957 paper, "The Adjustment of the Male Overt
Homosexual," described the results of psychological tests given to
both heterosexual and homosexual adults. Mental health experts who
looked at the data were unable to identify who were homosexual. After
this study, which was confirmed by other researchers, it became
difficult for mental health professionals to maintain the belief that homosexuality was a mental
illness. More details.
Some changes occurred in the second half of the 20th century:
||1955: USA: The American Law Institute, "...a group of
distinguished lawyers and law professors" prepares draft model
legislation that it recommends be passed by state legislatures. In 1955,
they recommended the decriminalization of adult private same-sex behavior. 1
||1961: IL: The state of Illinois became the first North American
jurisdiction to follow the Institute's recommendations and repeal its sodomy law,
thus decriminalizing same-sex
||1969: Canada: The Government of Canada decriminalized
homosexual behavior across the entire country with a single federal bill that became law. The Attorney General,
Pierre Trudeau, who was later to become Prime Minister, said that "The state
has no place in the bedrooms of the nation." 2
||1971: CT: Connecticut was the second state to repeal its
sodomy law. 1
||1975: CA: The California legislature
repealed its sodomy law in a dramatic way. The Senate vote was tied.
Majority leader George Moscone kept the vote open and the Senate in session
while a private plane flew the Lt. Governor back to Sacramento. He cast the
tie-breaking vote. Moscone, later elected as mayor of San Francisco, was
assassinated three years later.1
||1980: USA: A total of 19 states had repealed their sodomy laws: CT, CO, CA, DE, HI, IN, IO, ME, NE,
NJ, NM, ND, OH, OR, SD, VT, WA, WV, WY by this time. 1
||1986: USA: The U.S. Supreme Court reviewed a Georgia case, Bowers v. Hardwick, involving same-sex
behavior and decided that the state's sodomy law was constitutional. They ruled that
a state has the constitutional authority to criminalize what it considered to be
||2003: USA: A generation later, only 13 U.S. states still
criminalized "sodomy." Of these, four contiguous states, Kansas,
Missouri, Oklahoma and Texas, criminalized certain forms of private,
consensual sexual behavior between persons of the same sex, but
permitted the same activities if performed by a man and woman.
U.S. Supreme Court reviewed the Texas law in the Lawrence v. Texas case.
In a precedent-making decision, the Court decided on 2003-JUN-26 that adults are
free to engage in private consensual sex without government oppression. The
court declared that the Texas law was unconstitutional, that the similar
laws in the other three contiguous states were unconstitutional, and that the anti-sodomy laws in the nine remaining states were
unconstitutional. More details.
This was a decision of truly momentous proportions. It ultimately may
have an impact on American culture which is greater than the 1973 decision in Roe
v. Wade which allowed abortion access. Both the Roe v. Wade and Lawrence
v. Texas decisions were based on the concept of personal privacy which
the court found was implied, but not specifically stated, in the U.S.
Constitution. The court decided
that the Constitution guarantees that individuals can enjoy freedom
from government control over their private lives. The court
placed severe limits on the ability of state governments to legislate sexual morality
and intrude on people's lives. There is now some doubt whether laws in some states which criminalize
fornication (sexual intercourse by unmarried persons), adultery, and other
private, adult sexual behaviors may also be
found to be unconstitutional by the same logic. Eventually, laws prohibiting
bigamy and polygamy may be found unconstitutional. The majority in a state
may feel that a given behavior is unacceptable or immoral on cultural or
religious grounds. However, a state cannot now necessarily criminalize it.
This major change in American jurisprudence was a necessary first step
towards eventually defining homosexuals as a protected class. But it was not
a sufficient step. Adding sexual orientation to existing hate-crime and human
rights legislation had to be fought one law at a time.
References used to prepare this essay:
- "History of Sodomy Laws and the Strategy that Led Up to Today's
Decision," American Civil Liberties Union, 2003-JUN-16, at: http://www.aclu.org/
- Christine Overall, "Trudeau Was Right. State Should Stay Out Of
Nation's Bedrooms," Kingston Whig Standard, Kingston ON, 2004-JUN-28,
Copyright © 2004 to 2017 by Ontario Consultants on
Latest update: 2017-JAN-22
Author: B.A. Robinson