Playing It Safe: How the Supreme Court Sidesteps Hard Cases and Stunts the Development of Law

By Lisa A. Kloppenberg | Go to book overview

5
Coming Out of the
Constitutional Closet

At the close of the twentieth century, gay Americans—homo- sexuals, lesbians, and bisexuals—had made significant gains in freedom, privacy, and acceptance. Since the 1960s, more than half the states have repealed their laws criminalizing consensual sodomy. Some states and many cities have prohibited public and private discrimination against gays.1 Nevertheless, gay people are still singled out by law. The armed forces criminalize sodomy and exclude gays who are open about their sexual orientation. Gays have difficulty obtaining custody of their chil- dren or adopting in some states. Same-sex marriage is banned in most states and same-sex sodomy in some states. Other laws are facially neutral but affect gays disproportionately: for example, antidiscrimination laws that do not prohibit sexual orientation discrimination, general sodomy laws that criminalize consensual intimacy, and euthanasia bans.2

During the last quarter of the twentieth century, more anti-gay laws were passed, both at the national and local level. In states with direct democracy, gays have been heavily targeted. A study of civil rights initia- tives and referenda from 1959 to 1993 found that voters approved more than three-fourths of measures restricting civil rights, while passing only about one-third of all initiatives and referenda in the same period. The study, covering proposed laws about housing and public accommoda- tions for racial minorities, school desegregation, gay rights, English lan- guage laws, and AIDS policies, shows that nearly 60 percent of all such civil rights measures dealt with gay rights. Nearly 90 percent of these measures were designed to restrict gay rights. Those restrictive measures passed nearly 80 percent of the time.3 Legislative and executive decisions have also targeted gays. Between 1993 and 2000, at least thirty states banned gay marriage.4 In Alabama and Mississippi, where legislatures re- fused to ban gay marriage, governors issued executive orders aiming to thwart recognition of gay marriages from other states.

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