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Homosexuality as a protected class

Barriers preventing the addition of
sexual orientation a protected class.

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Past barriers:

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 same-sex behavior.

Faith groups, mental health therapists and others condemned it as an immoral practice, criminal act and/or a mental illness:

bulletEvery 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.
bulletAlmost 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.
bulletTherapists 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:

bullet1955: 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
bullet1961: 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
bullet1969: 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
bullet1971: CT: Connecticut was the second state to repeal its sodomy law. 1
bullet1975: 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
bullet1980: 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
bullet1986: 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.
bullet2003: 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.

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 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:

  1. "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/
  2. 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/

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Copyright © 2004 to 2009 by Ontario Consultants on Religious Tolerance
Latest update: 2009-JUN-28
Author: B.A. Robinson

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