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 | Every state in the U.S., the federal government in Canada, and both militaries 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." This 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 behavior. 1 |
| 1969: Canada: The federal government of Canada decriminalized homosexual behavior across the entire country. 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 became 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| 1975: CA: The California legislature repealed its sodomy law in a dramatic way.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 1980. 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 immoral behavior. |
| 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 them if performed by a man and woman. The 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 U.S. 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 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.
Achieving protected class status, one law at a time:
For the current status of hate-crime and human rights laws in all U.S. states, see the Human Rights Campaign data base at: http://www.hrc.org/
A few significant milestones are described below.
| 1977: Quebec, Canada: Eight years after homosexual behavior was decriminalized across Canada, Quebec became the first jurisdiction in North America to add sexual orientation to its Human Rights Act, R.S.Q.C-12. Chapter I.1 titled "Right to equal recognition and exercise of rights and freedoms" begins: "10. Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap." 3 [Emphasis ours] | ||||||||||
| 1993: Minnesota: The state's Department of Human Rights
supervisor Elaine Hanson said: "Minnesota
is regarded as having the broadest coverage for sexual orientation of
any state in the nation, as well as the best definition." Sexual orientation was added as an additional protected class to Minnesota's existing Human Rights Act in 1993. 4 The applicable section states: "sexual orientation means having or being perceived as having an emotional, physical or sexual attachment to another person without regard to the sex of that person or having or being perceived as having an orientation for such attachment..." In addition, the act protects transsexuals as: "...having or being perceived as having a self image or identity not traditionally associated with one's biological maleness or femaleness." 5 Heterosexuals, homosexuals and bisexuals are protected regardless of whether they are celibate or sexually active. Department of Human Rights supervisor Gary Gorman said that both disability and sexual orientation are "...treated differently in the Act [from other protected classes]...The Act's sexual orientation provision covers not only those who are gay or lesbian, for example, but also, those who are perceived to be so. 'We've had a number of cases in which a male was perceived as being gay, but the guy was married and had kids and said he wasn't gay,' says 'But if someone is harassed because someone [else] thinks they are gay, or treats them as if they were, if it interferes with their employment, that's discrimination,' Gorman says." As in many other jurisdictions, religious organizations are allowed limited exemption from this act. They can discriminate on the basis of sexual orientation in hiring clergy and other religious staff, in including people as members of the church, and in selecting students for education in church-run facilities . So, for example, they could expel a student who had attended their parochial school for some time and who just revealed that they were gay. But religious groups are not allowed to discriminate in hiring bookkeepers, janitors, and employees for other assignments where the job does not involve religion. Like all other human rights acts of which we are aware, Minnesota's law does not give gays, lesbians and bisexuals any special privileges. Elaine Hanson commented that many people misunderstand the scope of the law and believe that it "extends some special or extra rights to gay people. That is absolutely not true." It protects persons of all sexual orientations -- heterosexual, homosexual or bisexual -- from discrimination equally. The state's Department of Human Rights' web site states: "It surprises some that the department has accepted charges from -- and obtained justice for --- men who have charged gender discrimination, conservative Christians who have been victims of religious harassment, and heterosexuals who have alleged discrimination based on sexual orientation. In one such case, a male employee who worked as an entertainer in a gay bar was fired, allegedly because he was spending time off duty in the company of females. 'It was presumed, therefore, that he must be heterosexual,' Hanson recalls. The department found probable cause to believe the presumed heterosexual employee was a victim of discrimination based on his sexual orientation." | ||||||||||
| 1995: Canada: The Supreme Court of Canada ruled in Egan v. Canada that the exclusion of a gay couple from the Old Age Security Act was a violation of Section 15 of the Charter of Rights and Freedoms -- Canada's federal constitution. This affects the section that deals with equality rights. The ruling stated, in part: "Blending my analysis of the nature of the interest together with my conclusions regarding the nature of the group affected by the impugned distinction, I am convinced that this distinction is reasonably capable of exacting a discriminatory toll upon the group affected. I would therefore find the impugned distinction to be discriminatory within the meaning of s. 15(1) of the Charter." In effect, the Court ruled that the term "sexual orientation" was to be "read in" to the Charter. That is, the term was not originally in the Charter. However, after 1995, the Charter is to be interpreted as if the term is in place. 6 | ||||||||||
| 1996: Canada: The term "sexual orientation" was added to the Federal Human Rights Act. 7 | ||||||||||
| 2002: New York:
The Sexual Orientation Non-Discrimination Act (SONDA) was passed
by the Senate of New York in 2002-DEC, and was signed into law shortly
thereafter. It added "sexual orientation" to an existing list of
protected classes in the state's Human Rights law. The Human Rights Law, Article 15, Section 291.1 states: "The opportunity to obtain employment without discrimination because of age, race, creed, color, national origin, sexual orientation, military status, sex or marital status is hereby recognized as and declared to be a civil right." [Emphasis ours]. Subsection 2 similarly prohibits discrimination in education, public accommodation and housing. The New York human rights law has a broad and precise definition of "sexual orientation. "Section 292.27 states that: "The term 'sexual orientation' means heterosexuality, homosexuality, bisexuality or asexuality, whether actual or perceived. However, nothing contained herein shall be construed to protect conduct otherwise proscribed by law." 8,9 | ||||||||||
| 2003-DEC: USA: Human Rights Campaign (HRC) reports on human
rights laws across the U.S.:
The HRC reports that there have been no changes since 2003-DEC in any state. | ||||||||||
| 2004-SEP-9: WA: Washington state Superior Court Judge, Richard Hicks, ruled that gays and lesbians are part of a protected, minority class. He also ruled that the state Defense of Marriage Act (DOMA) that denies them the right to marry is unconstitutional. Judge Hicks wrote: "The clear intent of the Legislature to limit government approved contracts of marriage to opposite-sex couples is in direct conflict with the constitutional intent to not allow a privilege to one class of a community that is not allowed to the entire community." He also stated that the DOMA law places same-sex families and their children at risk. He wrote: "Same-sex couples can have children through artificial insemination and same-sex couples can adopt children all with government approval. Where is the protection for these children?" Paul Lawrence, the plaintiffs' lawyer from the American Civil Liberties Union (ACLU) said that the judge's ruling was "well-grounded in state constitutional-law principles. He makes a very clear finding that the state Constitution requires equal treatment of all citizens and that state marriage laws don't provide equal treatment and are therefore unconstitutional....this is exactly the type of case that the state Supreme Court will take directly on review." -- i.e. it might bypass the Court of Appeals. 11 More details. | ||||||||||
| 2004-OCT-1: USA: By this date, Human Rights Campaign
reports on hate crime legislation across the U.S. By this date:
|
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, at: http://www.christiangays.com/
- "The Quebec Charter of Human Rights and Freedoms," at:
http://www.cdpdj.qc.ca/ You may need software to read this file. It can be obtained free from:
- "Sexual Orientation and the Minnesota Human Rights Act," Minnesota web site, at: http://www.humanrights.state.mn.us/
- Chapter 363A.03 Subd 44 of the Minnesota Human Rights Act.
- Text of the decision: "Egan v. Canada, [1995] 2 S.C. R., Pages 567 & 568. at: http://www.lexum.umontreal.ca/
- "1999 Annual Report: Sexual Orientation," Canadian Human Rights Commission, at: http://www.chrc-ccdp.ca/
- "Statement from Governor George E Pataki," New York State Division of Human Rights, 2002-DEC, at: http://www.nysdhr.com/
- "Executive Law, Article 15: Human Rights Law," New York State, at: http://www.nysdhr.com/
- "Statewide anti-discrimination laws & policies," Human Rights Campaign® at: http://www.hrc.org/
- Lornet Turnbull, "Gays are a protected class, state judge rules." Seattle Times, 2004-SEP-9, at: http://seattletimes.nwsource.com/
- "Statewide Hate Crimes Laws," Human Rights Campaign® at: http://www.hrc.org/
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Copyright © 2004 by Ontario Consultants on
Religious Tolerance
Latest update: 2004-SEP-13
Author: B.A. Robinson
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