Law and the Gay Rights Story

Walter Frank

• Publisher: Rutgers University Press
• Year: 2014
• ISBN:
  9780813573304
• Topic: Law
• Subtopic: Legal History
• Index: Law

For much of the 20th century, American gays and lesbians lived in fear that public exposure of their sexualities might cause them to be fired, blackmailed, or even arrested. Today, they are enjoying an unprecedented number of legal rights and protections. Clearly, the tides have shifted for gays and lesbians, but what caused this enormous sea change?In his gripping new book, Walter Frank offers an in-depth look at the court cases that were pivotal in establishing gay rights. But he also tells the story of those individuals who were willing to make waves by fighting for those rights, taking enormous personal risks at a time when the tide of public opinion was against them. Frank’s accessible style brings complex legal issues down to earth but, as a former litigator, never loses sight of the law’s human dimension and the context of the events occurring outside the courtroom.Chronicling the past half-century of gay and lesbian history, Law and the Gay Rights Story offers a unique perspective on familiar events like the Stonewall Riots, the AIDS crisis, and the repeal of “Don’t Ask, Don’t Tell.” Frank pays special attention to the constitutional issues surrounding same-sex marriage and closely analyzes the two recent Supreme Court cases addressing the issue. While a strong advocate for gay rights, Frank also examines critiques of the movement, including some coming from the gay community itself. Comprehensive in coverage, the book explains the legal and constitutional issues involved in each of the major goals of the gay rights movement: a safe and healthy school environment, workplace equality, an end to anti-gay violence, relationship recognition, and full integration into all the institutions of the larger society, including marriage and military service.  Drawing from extensive archival research and from decades of experience as a practicing litigator, Frank not only provides a vivid history, but also shows where the battle for gay rights might go from here.

Part One

The Freedom Struggle (1945–1992)

For the first two and half decades after the end of World War II, gay men and women were pariahs. As late as 1967, Mike Wallace could begin the CBS Reports program, “The Homosexuals,” three years in the making, with these words: “The average homosexual, if there be such, is promiscuous. He is not interested or capable of a lasting relationship like that of a heterosexual marriage. His sex life, his love life, consists of a series of one-chance encounters at the clubs and bars he inhabits.” Later, although apologetic—“I should have known better,” Wallace admitted in 1992—he attributed the program to ignorance, for “that is—God help us—what our understanding was of the homosexual lifestyle a mere twenty-five years ago because nobody was out of the closet and because that’s what we heard from doctors” (Kohler 2013). Wallace’s reference to the closet is instructive, for there is no question that the gay rights movement could not begin until a critical mass of gay people were willing to abandon the closet and begin to break down the stereotypes to which Wallace alluded. Gays needed to find themselves first in order to confront America.

Coming out in 1950s America took an extraordinary amount of courage, however. The issue wasn’t coming out to the straight world. That was virtually unthinkable. Rather, just coming out to oneself and to want to meet others to discuss what it meant to be gay were extraordinary steps. For the most part, all the forces of society were arrayed against such self or group realization. As often occurs, however, some who experienced that oppression began to question it and create the beginnings of a protest movement that would flower in the wake of the 1969 Stonewall riots. I describe all of this, including the extraordinary campaign against homosexuals during this period, in chapter 1. In chapter 2, I focus specifically on Stonewall and attempt a brief assessment of its importance in the gay rights movement. A recent trend has been to question the importance of Stonewall as a transformative moment in gay history, but I believe this view may have gone too far.

The 1970s saw the emergence of a bathhouse, disco, and bar culture to which gays migrated with an exhilaration and sense of freedom that can only be understood against the backdrop of the draconian oppression of earlier decades. Freedom was in the air, and for the time being that was enough for many. It was not, however, the whole story, for many young gay men and women had been deeply politicized by their experiences in the sixties of protesting the Vietnam War, working for civil rights for African Americans, and participating in the nascent feminist movement. For these people, the seventies were all about politics and intellectual ferment. In some cities, gay rights advocates, flying under the radar screen, even secured ordinances prohibiting antigay discrimination; a few courts tentatively moved in the direction of gay rights, and the gay rights movement began its long courtship with the Democratic Party. The end of the decade saw disheartening setbacks as the increasingly powerful religious right secured the repeal of antidiscrimination ordinances passed earlier in the decade in several major cities, but it also saw the first of the major gay civil rights marches, an event that confirmed the breadth of gay organizational activity that had occurred in the seventies and the growing sense of confidence and renewal experienced by many. Chapter 3 examines all of these developments.

Chapter 4 addresses the AIDS holocaust that unfolded beginning in the early 1980s. I tell this story in all its aspects, trying to recapture how frightening and terrifying it must have seemed at the outset, the indifference of straight society, including a conservative national administration, the initial devastation left by the disease, and the heroic response of the gay community itself. From the vantage point of 2013, the most important consequences of the AIDS crisis were how it forced many hitherto closeted gay men, particularly affluent city dwellers previously able to live comfortable closeted lives, to come out and to organize for their own survival; how it led to the establishment of a permanent lobbying presence in the nation’s capital to gain needed funds for medical research and protect the gay community from attacks from the religious right; how the emotional impact of AIDS on the survivors began to lead to a reconsideration of personal goals and priorities; and how the crisis forced the gay community to interact with straight institutions in ways that underscored the need for equal rights and the legal recognition of gay relationships. The AIDS crisis also produced two areas of controversy with important legal dimensions: the closing of bathhouses and mandatory AIDS testing. I discuss these developments as well as the important ways in which the AIDS crisis played out (and continues to play out) differently for black males than for whites.

1

Isolation, Oppression, and Emergence (1945–1969)

Imagine that it is the early fifties and you are a teenager living almost anywhere in America. You have a terrible secret that will have absolutely no practical consequence as long as it stays with you. To friends and family who do not suspect that secret, you are completely yourself. They love you for who you are, warts and all, or so they think. You know differently. You know that your secret is so powerful that, if revealed, your friends may shun you and even your family stop loving you. You are also taught that your secret conceals a flaw so abominable that God has decreed (at least if you are male) that you should die if you act upon it. Such a flaw endangers your very soul and doesn’t do much for your self-esteem.

How many other people have a similar secret? You have no idea; everyone who can is keeping the same secret. Not only is there no one like you in your town; there is no one like you anywhere—not on television, not on radio, not in the movies. Your best potential role models, your teachers, couldn’t possibly share your secret, if they had it too, and still be employed the next day. For that matter, neither could anyone else. You know you have a voice. You believe you are a decent person, but how does that matter when every source of authority you are supposed to trust—family, school, church, the law—says otherwise.

The secret, of course, is your feeling of sexual attraction to persons of the same sex. Is this just a phase that you will outgrow? Why do you have these feelings? Does anybody else have these feelings? You are afraid to ask. Books did not help. One participant in the University of Wisconsin–Madison Archives Oral History Program remembers getting up the courage to sign out some material at her library: “And then what you got was just horror stories about how to change and be changed and that it was a phase” (Biddle 2009). Another participant recalls: “I knew I didn’t fit in. I didn’t know why, didn’t quite know why. There was no literature to tell me—there’s no one to tell me what’s going on” (Yeardon 2009). The only book written by an actual homosexual that might give you some sense of connectedness is The Homosexual in America by Donald Corey, but this was hardly the kind of book that the average gay teenager was likely to know about and, this being the fifties, Donald Corey was a pseudonym for Edward Sagarin, a sociologist, who had a day job and even a wife to protect. The book’s theme—that homosexuals were a persecuted minority—was also not likely to make a teenager more open about his fears.

Our isolated teenager is no work of fiction. Consider this observation by John D’Emilio, a leading historian of the gay rights movement: “Pretty much every gay man or lesbian of the Stonewall era came of age believing that we were the only person like us in the world, and that what we were was not good” (D’Emilio 2002, x–xi). Marty Manford recalled that “the newspapers always referred to homosexuals and perverts as if they were one and the same” and that, as a fifteen-year-old, “if you were gay and you accepted those societal norms, then you were at war with yourself” (Marcus 2002, 109). It was the same for young women. In a 1971 interview Barbara Gittings reflected that she had had “a lot of problems coming to terms with myself as a young lesbian” and became active in gay liberation “to help see to it that younger gays don’t have to go through the troubles I had when I was coming out” (Tobin and Wicker 1972, 205).

It was no easier in the adult world. In the 1950s and into the 1960s, homosexuals were perceived to be as dangerous as communists, threatening the moral strength and vitality of the nation. Both groups imperiled the nation’s future; both represented shadowy conspiracies of like-minded people who sought to undermine and then destroy existing institutions; and both could be combated only with the assistance of a watchful public and energetic government. In the words of William Eskridge, “homosexuals were like the pod people in Don Siegel’s The Invasion of the Body Snatchers: they were weird aliens who could pass as human and whose goal was to prey on Americans and turn them into pod people” (1996, 710). The fear of communism actually reinforced the fear of homosexuality. At a time when American democracy needed tough, effective men to combat a powerful alien ideology, homosexuality “symbolized the betrayal of manhood—the feminine enemy within men” (Adam 1995, 62).

No boundaries existed when it came to demonizing gays. Pulp magazines ran articles with titles such as “Hidden Homos and How to Spot Them.” Mainstream periodicals were no better. Coronet magazine, for example, a general interest magazine owned by Esquire, Inc., claimed: “The homosexual is an inveterate seducer of the youth of both sexes, not content with being degenerate himself; he must have degenerate companions, and is ever seeking younger victims. . . . Once a man assumes the role of homosexual, he throws off all moral restraints” (Carter 2004, 14).

Alfred Kinsey’s Sexual Behavior in the Human Male, published in 1948, underscored the homosexual threat in two ways. First, his estimates (no longer accepted) suggested that there were potentially millions more homosexuals in America than had previously been imagined. Second, Kinsey’s descriptions made clear that many homosexuals were not so effeminate that they could, in fact, be easily spotted. Both points fed the public paranoia of a hidden threat to the national well-being. One positive may have emerged from the report, for John D’Emilio believes that the first Kinsey Report, as well as later ones, “by revealing that millions of Americans exhibited a strong erotic interest in their own sex . . . implicitly encouraged those still struggling in their isolation against their sexual preference to accept their sexual inclinations” (1983, 37).

Homosexuals, in the eyes of post–World War II America, were not only immoral and dangerous; they were also sick, and not just in the popular view, but according to the experts, the nation’s psychiatrists and psychologists. The only thing to do with them, for their own good as well as society’s, was to cure them. Historians have documented the emergence, beginning in the late nineteenth century, of a growing medical consensus that homosexuality was a pathological condition requiring treatment and reversal. In the ensuing decades, mental health professionals saw conversion to heterosexuality as the only possible road to happiness. A series of documents, chilling in their banality, collected in Gay American History (Katz 1992), attests to the futility of these “treatment” efforts and the damage they could cause.

The deep prejudice against and fear of homosexuals only partially explain the campaign against them, for there was also something deeply embedded in the psychology of post–World War II America that gave new impetus to the war against homosexuality. A fuller explanation for the postwar paranoia about homosexuals must be sought in a general cultural outlook of the America of the 1950s, which made any kind of deviation a threat.

Postwar America

William Whyte, in his 1956 best seller The Organization Man, captured a key aspect of the fifties when he wrote: “it is the whole man the Organization wants and not just a part of him. Is the man well adjusted? Will he remain well adjusted? A test of potential merit [aptitude tests] could not tell this; needed was a test of potential loyalty” (1956, 172). This statement illuminates what gays and lesbians were up against in that era, for, while in the grip of his overwhelming obsession and vulnerability to blackmail, how, in society’s view, could a gay man offer the requisite loyalty? Patriotism and conformity were the unchallengeable virtues of this era both at the workplace and home. In the world of Ozzie and Harriet and Father Knows Best, two of the nation’s better-known television sitcoms of the 1950s, with their ideal of the perfect American family, there was little room for toleration of a behavior so different from the norm, one that affronted the whole ideal of pristine uniformity on which the image of domestic happiness, 1950s style, was built. That ideal of domestic happiness, rooted in the institution of heterosexual marriage, had no place for homosexuals and, in fact, required their isolation to reinforce heterosexual norms.

No one, no matter how admired, was safe from banishment or allowed any sympathy once their secret was out. This is what made arrest and exposure the greatest fear of the 1950s gay man. Harry Hay, the founder of the Mattachine Society, remembered: “The moment a person was listed as a homosexual [following arrest], his name appeared on the front page of the newspaper. The moment that happened you lost your job, you lost your insurance, you lost your credit” (Terkel 1995, 304). “Suicides,” writes Randy Shilts, “were a common postscript to the raids and exposure as a homosexual” (Shilts 1982, 18). Indeed, it was fear of bar raids that often drove gays to public parks and bathrooms, the back of trucks and other places, although nowhere was completely safe

The story of Dan R., as recollected by Allan Gurganus (1996) in a rich anthology of coming out stories titled Boys Like Us, is a particularly dramatic example of how unforgiving midcentury conformist America could be. Dan R. was admired by everyone in North Falls, North Carolina. Thirty-three years old, a great golfer, handy with tools, he had already been elected the 1955 Rotarian Young Man of the Year. Dan R. had a wife who taught third grade and three lovely kids. One day in 1957 he took the children to the cinema in Raleigh, North Carolina (about an hour’s drive) to see Snow White and the Seven Dwarfs.

While the children were watching the movie, a much different drama was taking place in the men’s room of the newly opened J. C. Penney’s department store. It seems that a local off-duty police officer was in the habit on weekends of positioning his handsome teenage son near one end of the urinals and having him expose himself in an effort to entrap local homosexuals. The locals were much too knowledgeable and careful to fall for this setup, but Dan R., who had gone in just to relieve himself, found himself momentarily giving way to a forbidden temptation. As he touched the boy’s exposed part, he was blinded by the flash of the off-duty police officer’s camera. In an instant, according to the local newspaper account, Dan R. “was handcuffed and already on his way to prison.” Dan R. served a seven-week sentence and then left the state. Until he sent for his family, his wife went out only to shop for groceries wearing dark glasses. Gurganus never saw Dan again. “My dad,” Gurganus recalled, “played eighteen holes a week with him for six years but that was neither mentioned nor admitted. Dan, once considered indispensable, seemed—overnight—not just dead but unmissed” (1996, 59–60). The law had given Dan seven weeks in jail; North Falls had banished him forever and blotted out all memory of his existence.

To a degree impossible to quantify, the fifties war against homosexuals was also abetted by a post–World War II era characterized by two great fears—the fear of nuclear war and the fear of a world communist revolution led by the Soviet Union. These fears were exploited by Senator Joseph McCarthy in a self-aggrandizing domestic war against subversives and potential traitors. A nation extracting loyalty oaths, enforcing blacklists, and rooting out “un-American activities” created an atmosphere that could easily justify a domestic war on a hated and feared group. It was an America that needed a near-perfect self-image to arm itself in the war on communism, one that had no room for homosexuals in the family portrait. Indeed, it hardly had room for divorce. Donna Biddle, born in 1940 and raised in the Bible Belt, where “everything was a sin,” had been hiding strong feelings of same-sex attraction from the age of five, but it was the fact that her mother was divorced, “a fall...

Table of contents

• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• Introduction
• Part I. The Freedom Struggle (1945–1992)
• Part II. The Struggle for Legal Equality (1993 to the Present)
• Part III. The Right to Marry
• Suggested Reading
• References
• Cases
• Index
• About the Author