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| Issues: Gay and Lesbian Issues
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Same-Sex Marriages (last updated February 7, 2005) (back to top)
The debate over same-sex marriage continues with court battles and legislative changes, largely sparked by a ruling by Massachusetts' highest court in November 2003 that denying same-sex couples the same rights as heterosexual couples would violate that state's constitution and a subsequent February 2004 ruling that same-sex couples are entitled to "marriages," not just "civil unions."
In the wake of this ruling, President George W. Bush called for a constitutional amendment that would define marriage as an institution only between a man and a woman; this measure did not get sufficient support in the Senate in July 2004 to advance. Still, voters in 11 states (Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Ohio, Oklahoma, Oregon and Utah) approved measures in November 2004 amending their constitutions to ban same-sex marriage either by defining marriage as between a man and a woman or by going further and stating that legal equivalents such as civil unions may not be recognized.
Only two states currently recognize same-sex couples' rights via an equivalent to marriage such as civil unions or domestic partnerships: Vermont and California.
It is still unclear exactly how other states would treat same-sex marriages or civil unions and whether a refusal to recognize such marriages or civil unions would violate the U.S. Constitution's "Full Faith and Credit" clause. At least 36 states specifically give legal recognition only to heterosexual marriages. Similarly, the federal Defense of Marriage Act in 1996 prohibited federal recognition of same-sex marriages.
Same-sex marriages are allowed in the Netherlands and in Belgium. Canada also is considering national legislation that would permit such marriages while also recognizing that religious officials can refuse to perform such marriages. "Extending civil marriage to same-sex couples does not take away the rights of any others, nor does it relate to religious marriage," Canada's Attorney General Irwin Cotler said in a statement while introducing the Civil Marriage Act on Feb. 1, 2004 (on-line here). Canada's highest court ruled on Dec. 9 that a draft version of the bill was constitutional. According to reports, the Civil Marriage Act is gaining political support in Canada and may become law by the summer of 2005.
Hawaii and the Nationwide Backlash
The same-sex marriage debate began in Hawaii in December 1990, when three same-sex couples were denied marriage licenses from the state's department of health because Hawaii's marriage statute referred specifically to a man and a woman. The couples then sued on equal-protection grounds. In 1993, the Hawaii Supreme Court ruled that the state's equal-protection clause was "more elaborate" than the U.S. Constitution's, and it ordered a trial as to whether the state could justify limiting marriage to male-female couples.
The Hawaii trial took place in September 1996 and Judge Kevin S.C. Chang ruled in December 1996 that the state did not meet its burden of proof and that the Hawaii marriage statute was unconstitutional. However, the judge stayed the ruling until the issue was definitively resolved on appeal by the Hawaii Supreme Court once again. The issue subsequently was made moot by a state-constitution amendment in 1998; Hawaii no longer recognizes same-sex marriages at all.
Even so, the Hawaii proceedings sparked a backlash wave of legislation around the country even before it was finally resolved. In 1996, the federal Defense of Marriage Act prohibiting federal recognition of same-sex marriages became law. States enacted similar legislation; 15 states did so in 1996 alone, and 36 states had such laws as of 2002.
Vermont and Civil Unions
The debate shifted to Vermont in 1999, when the state Supreme Court held that its state constitution entitled same-sex couples to the same benefits and protections as male-female marriages and that the state legislature had to enact some kind of legislation authorizing such treatment.
"Whether this ultimately takes the form of inclusion within the marriage laws themselves or a parallel 'domestic partnership' system or some equivalent statutory alternative, rests with the Legislature. Whatever system is chosen, however, must conform with the constitutional imperative to afford all Vermonters the common benefit, protection, and security of the law," Chief Judge Amestory wrote.
The state legislature complied with a law authorizing "civil unions" in April 2000, effective July 1, 2000. Within the first complete calendar year following Vermont's law allowing civil unions, 1,875 civil unions were established in Vermont, with out-of-state residents (mostly from New York, Massachusetts and Florida) accounting for about 87 percent. Two-thirds of the unions were between female partners, with the most common age range for partners being between 35 and 39.
Massachusetts and Bush
In November 2003, a 4-3 majority of the Massachusetts Supreme Judicial Court followed Vermont's example and held that laws denying same-sex couples the right to marry were not based in any rational reasons and thus could not be justified under the state constitution. In doing so, the majority drew parallels between the ban on same-sex marriage to older bans on interracial marriages, which were invalidated by the United States Supreme Court in 1967.
"The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason," Chief Justice Margaret Mitchell wrote for the majority. "Limiting the protections, benefits, and obligations of civil marriage to opposite-sex couples violates the basic premises of individual liberty and equality under law protected by the Massachusetts Constitution."
Many, including President George W. Bush, have criticized the court's decision. In a Nov. 18 statement, Bush said, "Marriage is a sacred institution between a man and a woman. Today's decision of the Massachusetts Supreme Judicial Court violates this important principle. I will work with congressional leaders and others to do what is legally necessary to defend the sanctity of marriage."
Sources re Same-Sex Marriages: The Massachusetts Supreme Judicial Court's decision, in Goodridge v. Department of Public Health, is on-line here, and the legislation proposed in response Senate No. 2175, is on-line here. President George W. Bush's Nov. 18, 2003 statement on the Goodridge decision is on-line here and an annotated version of his Jan. 20, 2004 State of the Union address is on-line here. National Conference of State Legislature survey of same-sex marriages, available here. The Vermont Supreme Court's decision is available here. Vermont's Secretary of State has information on civil unions on-line here, including the 2001 Vital Statistics Annual Report that includes information on the civil unions established in the first year of the law's operation (on-line here). An analysis of the Hawaii same-sex marriage case is available here. Carey Goldberg, Quiet Anniversary for Civil Unions, New York Times, July 31, 2001, page A14.
Sodomy Laws (last updated March 3, 2004) (back to top)
Seventeen years after deciding that laws criminalizing sodomy were constitutional, the United States Supreme Court declared in 2003 that such laws violated adults' constitutional right to decide how to conduct their personal lives.
At the time, 13 states defined anal-intercourse as a crime when done by consenting adults of the same sex, though 4 states (Kansas, Missouri, Oklahoma, and Texas) did not criminalize anal-intercourse when done by a consenting adult man and a consenting adult woman. Some of these states defined sodomy as being either oral- or anal-intercourse, and some simply criminalize anal-intercourse.
All such laws were rendered unconstitutional by the United States Supreme Court's June 26, 2003 decision in Lawrence v. Texas. Writing for the Court, Justice Anthony Kennedy wrote that such laws sought to "control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals."
The Lawrence decision overruled a 1986 decision (Bowers v. Hardwick) that upheld a Georgia sodomy law. In Bowers, the majority held that there was no fundamental right to homosexuals to engage in acts of consensual sodomy. Kennedy wrote in the Lawrence decision that the Supreme Court in 1986 had "failed to appreciate the extent of the liberty at stake." According to Kennedy, the question was not whether there was a fundamental right to engage in acts of consensual sodomy but whether there was a right to choose to enter into personal, sexual relationships with a consenting adult and to engage in sexual practices common to that choice.
Senator Rick Santorum's Comments
Reported comments by Senator Rick Santorum (R-Pa.) drew greater attention to the Lawrence case months before it was decided. The case was argued before the United States Supreme Court on March 26, 2003. A few weeks later, Santorum was quoted by the Associated Press as expressing worries that a Supreme Court decision declaring the Texas law unconstitutional would set a precedent that could undermine other sex-related laws regarding bigamy or incest.
In an April 22, 2003 statement, Santorum called the Associated Press story misleading and said that his concern was simply that "if such a law restricting personal conduct is held unconstitutional, so could other existing laws. Again, my discussion with the Associated Press was about the Supreme Court privacy case, the constitutional right to privacy in general, and in context of the impact on the family. I am a firm believer that all are equal under the Constitution. My comments should not be misconstrued in any way as a statement on individual lifestyles."
No matter what one thinks of the Supreme Court's decision in Lawrence v. Garner, the Supreme Court is unlikely to overturn anti-bigamy or anti-incest laws any time soon. For one thing, such laws easily can be distinguished from anti-sodomy laws. Anti-bigamy laws, for example, are not about preventing consensual sexual behavior but about preventing someone from getting the state's approval for more than one life partner and thus should not be treated the same.
State Laws pre-Lawrence
The following table shows state sodomy laws as of April 2003, with the appropriate offense and maximum jail sentence and/or fine in parentheses. States that did not prohibit sodomy or that had its law declared unconstitutional are not listed. Some states also had laws criminalizing nonconsensual sodomy and sodomy with minors; such laws are more akin to rape statutes and thus are not included here. California state law prohibiting consensual anal-intercourse by prison inmates is not listed below but can carry a one-year sentence.
| State, Relevant Statutes
| Anal Intercourse between consenting adults of the same sex
| Anal Intercourse between a consenting adult man and a consenting adult woman
| Oral Intercourse between consenting adults of the same sex
| Oral Intercourse between a consenting adult man and a consenting adult woman
|
| Alabama, Sec. 13A-6-60 and 65(c)
| Sexual misconduct (Class A misdemeanor)
| Sexual misconduct (Class A misdemeanor) if persons are not married to each other
| Sexual misconduct (Class A misdemeanor)
| Sexual misconduct (Class A misdemeanor) if persons are not married to each other
|
| Florida, Sec. 800.02
| "Unnatural and lascivious act" (misdemeanor of the second degree)
| "Unnatural and lascivious act" (misdemeanor of the second degree)
| Criminal status unclear
| Criminal status unclear
|
| Idaho, Sec. 18-6605
| "Infamous crime against nature" (minimum 5 years)
| "Infamous crime against nature" (minimum 5 years)
| Criminal status unclear from statute
| Criminal status unclear from statute
|
| Kansas, Sec. 21-3501 and 3505
| Criminal sodomy (Class B nonperson misdemeanor)
| Not prohibited
| Criminal sodomy (Class B nonperson misdemeanor)
| Not prohibited
|
| Louisiana, Sec. 102.1
| "Crime against nature" (5 years, $2,000 fine)
| "Crime against nature" (5 years, $2,000 fine)
| Criminal status unclear
| Criminal status unclear
|
| Mississippi, Sec. 97-29-59
| "Detestable and abominable crime against nature" (10 years)
| "Detestable and abominable crime against nature" (10 years)
| Criminal status unclear
| Criminal status unclear
|
| Missouri, Sec. 566.090
| Sexual misconduct (Class A misdemeanor)
| Not prohibited
| Sexual misconduct (Class A misdemeanor)
| Not prohibited
|
| North Carolina, Article 26, Sec. 14-177
| Crime against nature (Class I felony)
| Crime against nature (Class I felony)
| Criminal status unclear
| Criminal status unclear
|
| Oklahoma, Sec. 21-886
| "Detestable and abominable crime against nature" (felony, 20 years)
| "Detestable and abominable crime against nature" (felony, 20 years)
| Criminal status unclear
| Criminal status unclear
|
| South Carolina, Sec. 16-15-120
| Buggery (felony, 5 years, $500)
| Buggery (felony, 5 years, $500)
| Not prohibited
| Not prohibited
|
| Texas, Sec. 21.01, 21.06
| Class C misdemeanor
| Not prohibited
| Class C misdemeanor
| Not prohibited
|
| Utah, Sec. 76-5-403
| Class B misdemeanor
| Class B misdemeanor only if persons are not married to each other
| Class B misdemeanor
| Class B misdemeanor only if persons are not married to each other
|
| Virginia, Sec. 18.2-361
| Class 6 felony
| Class 6 felony
| Class 6 felony
| Class 6 felony
|
Sources: The Supreme Court's decision Lawrence & Garner v. Texas is on-line here. I conducted my survey of state sodomy laws on April 26, 2003 using state legislatures' web sites; my survey was guided in part by two sources, Richard Posner & Katharine B. Silbaugh, A Guide to America's Sex Laws (University of Chicago Press, 1996), and the Lambda Legal website, on-line here. Senator Rick Santorum's April 22, 2003 press release was available via his website on-line here.
The Boy Scouts of America's Anti-Gay Policy (last updated October 29, 2002) (back to top)
The Boy Scouts of America organization has the right under the First Amendment to exclude adult homosexuals, according to a United States Supreme Court case decided in 2000. In order to establish this right, however, the Boy Scouts adopted a much stronger and more public anti-gay position than it had in the past, and it still faces some criticism for that position.
Anti-discrimination laws can prevent private organizations from excluding certain members, though such laws do vary by state; New Jersey's, for example, is broader than California's. However, certain kinds of private organizations can trump even broad anti-discrimination laws by invoking their implicit First Amendment right of expressive association. There is no general right of association, but groups that engage in "expressive association" can exclude members whose inclusion would significantly burden that expression.
Dale v. Boy Scouts of America, the case decided by the United States Supreme Court in 2000, thus turned on whether the Boy Scouts of America was such an "expressive association." The case involved James Dale, a longtime Scout who had his adult membership revoked after a New Jersey newspaper reported that he was gay and involved in a gay students' organization at college; there was no indication that Dale ever mentioned his homosexuality or advocated tolerance to the scout troop he led.
The Boy Scouts' charter, the Scout Oath, and the Scout Law do not explicitly mention homosexuality. The charter states that the BSA seeks "to promote, through organization, and cooperation with other agencies, the ability of boys to do things for themselves and others, to train them in Scoutcraft, and to teach them patriotism, courage, self reliance and kindred values." The Oath does include a promise that each Scout keeps himself "physically strong, mentally awake, and morally straight," but the Scout's handbook defines "morally straight" not as being heterosexual, but as being a person of "strong character" who lives with "honesty, purity, and justice."
The Boy Scouts tried several times in the early 1990s to justify its anti-gay policy. Position statements in 1991 and 1992 stated that homosexual conduct was inconsistent with the Scout Oath's requirement that a Scout be "morally straight" and the Scout Law's requirement that a Scout be "clean in word and deed," and that homosexuals are not good role models. However, statements in 1993 did not base the policy in the Scout Oath and Law but in the "expectations that Scouting families have had for the organization."
The New Jersey Supreme Court decided in 1999 that the Boy Scouts was a group that espoused moral values, but not a group that associated to express the view that homosexuality was immoral, and that the Boy Scouts thus could not expel members simply because they were homosexual (the result may have been different if Dale had used his position as Scout leader to promote acceptance of homosexuality, which he did not).
The Boy Scouts appealed the case to the United States Supreme Court, and a majority of justices there disagreed with the New Jersey Supreme Court. Five justices accepted the Boy Scouts' assertion in its court papers that it "teach[es] that homosexual conduct is not morally straight" and does "not want to promote homosexual conduct as a legitimate form of behavior." The majority of justices also accepted a 1978 position statement signed by the then-president of the Boy Scouts, which stated that the Boy Scouts "do not believe that homosexuality and leadership in Scouting are appropriate. We will continue to select only those who in our judgment meet our standards and qualifications for leadership."
Other justices argued that there was insufficient evidence to back the Boy Scouts' claim. According to them, deference to court papers was not warranted since they were self-serving, the 1978 statement was not public and was not clearcut since it indicated that the Boy Scouts would not expel a homosexual member if prevented by law, and the Boy Scouts' efforts to justify its anti-gay policy were not credible. "BSA's temporary, though ultimately abandoned, view that homosexuality is incompatible with being 'morally straight' and 'clean' is a far cry from the clear, unequivocal statement necessary to prevail on its claim," Justice Stevens wrote.
Nevertheless, the Boy Scouts of America won the right to exclude Dale from its ranks.
Although Dale's was the first case to reach the United States Supreme Court, his was not the first case to challenge the BSA's anti-gay policy. In 1980, Tim Curran of California was told he would not be accepted as a scoutmaster or assistant scoutmaster because he was known to be gay (again because of his appearance in a newspaper article). Curran then filed a complaint in 1981 based on California's own public-accommodations statute; this case went on for 17 years until the California Supreme Court finally rejected Curran's claim on the grounds that the state's public-accommodations statute did not apply to organizations like the BSA.
Sources: Boy Scouts of America v. Dale, 530 U.S. 640 (2000), is available on-line via Findlaw.com here. The New Jersey Supreme Court's opinion is on-line here. Curran v. Mount Diablo Council of the Boy Scouts of America is available on-line via Lambda Legal here.
Hate Crimes : Federal and State Hate-Crime Legislation (last updated January 18, 2003) (back to top)
With growing awareness of violence directed against members of non-majority groups, many states have enacted a wide variety of hate-crime legislation that often involve the creation of new crimes or sentence enhancement. At the federal level, civil-rights statutes from the post-Civil War era and from the 1960s occasionally have been used to prosecute perpetrators of certain kinds of hate crimes, but debate continues as to whether broader measures should be enacted and how to tailor such laws without penalizing the offender's mere beliefs or violating free-speech or federalism concerns.
In recent years, public debate has focused on whether federal civil-rights laws should be amended to cover crimes directed against people because of their sexual orientation. Such measures have been introduced in the House and Senate, but have never become law. For example, the Senate voted 57-42 in June 2000 to pass the Hate Crimes Prevention Act - later renamed the Local Law Enforcement Act of 2000 - as an amendment to a defense authorization bill; the House later supported a parallel measure 232-192. However, on October 5, 2000, Republicans stripped the measure from the bill as the houses negotiated the final working of the authorization bill.
Hate-Crimes Legislation in the States
More than 20 states have passed hate-crimes legislation. These laws take many different forms; some criminalize acts such as intimidation or cross-burning, and some enhance the sentences for crimes that are specifically directed at someone because of a particular status category such as race or sexual orientation.
New York's hate-crime laws, for example, break what is popularly considered a hate-crime down into two crimes. First, there is the underlying crime itself, be it assault, rape, or other crimes. Second, there is the hate crime itself, which New York defines in Penal Law 485.05 as the intentional selection of a victim of based on a belief or perception regarding the "race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct." A person who commits a hate crime will generally receive a higher sentence for the underlying crime.
Additionally, New York has created the crime of aggravated harassment, Penal Law 240.30, which is when someone "strikes, shoves, kicks, or otherwise subjects another person to physical contact, or attempts or threatens to do the same because of a belief or perception regarding such person's race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct."
But even if a state does not have a hate-crimes measure, a state can still prosecute offenders to a serious degree. For example, those who killed Matthew Shepard in Wyoming and those who killed James J. Byrd Jr. in Texas were all prosecuted and convicted under standard criminal laws.
Hate-Crimes Legislation at the Federal Level
The federal government does have the power to prosecute what are now considered hate-crimes based on laws passed after the Civil War and because of the civil rights movement of the 1960s, but this power only covers some of the possible categories generally considered targeted by hate crimes and is limited by federalism concerns. Federal prosecutors have generally used such laws to prosecute crimes when local officials have failed or are unable to do so.
Currently, the federal government can prosecute those who commit certain kinds of hate-crimes based on race, color, religion, or national origin, but not hate-crimes based on gender, sexual orientation, or disability status. Recent legislative and political efforts have focused on expanding the coverage of existing civil-rights laws to include such categories. The Violence Against Women Act was enacted in 1994 and did expand 245's reach towards gender, but the Supreme Court struck it down as unconstitutional in 1999, holding that Congress did not have the power to pass such a law.
Beyond the status categories covered by such laws, these laws require some kind of "nexus" in order to justify federal jurisdiction (this is what the Violence Against Women Act lacked). A relevant 1870 law limits federal prosecutions to those committed "under color of law," meaning those who act with the official or unofficial approval of government officials. A 1968 law limits federal prosecutions to those that involve the deprivation of one's federal civil rights or the ability to enjoy public places.
Once this nexus can be found, prosecutors can use these civil-rights laws to bring criminal charges in federal court and to get around double-jeopardy. Under the U.S. Constitution, a person can be prosecuted for a crime only once by each government that can prosecute the case. And because most criminal law is conducted by each state, that usually means one shot and that's it. But federal hate-crime laws give the federal government its own chance to prosecute, effectively making federal prosecutors the back-up squad in case the state prosecutors either do not prosecute or fail to get a conviction.
Accordingly, federal prosecutors were able to bring charges against the local Mississippi police who killed three civil-rights workers in 1965 and the Los Angeles police officers who beat Rodney King in March 1991.
In addition, the federal Hate Crimes Sentencing Enhancement Act does enhance sentences for hate crimes committed against a wide group of statuses, but only when these crimes are committed on federal land.
First Amendment and Other Concerns
Debate continues not only over what status categories should be covered by hate-crimes laws, but over how to write and apply such laws without violating other civil rights. These concerns express themselves in different ways.The Supreme Court, for example, has struck down laws that were too specific; in 1992 the United States Supreme Court struck declared unconstitutional a local ordinance in Minnesota that criminalized cross-burning because it did not cover similarly hostile acts that were not based on race or other specific categories.
Similarly, the American Civil Liberties Union has supported expanding the coverage of federal civil-rights laws to sexual orientation and gender, but has simultaneously urged restrictions on the kinds of evidence that can be used at trial. In 1999, the ACLU warned that prosecutors have at times used evidence showing nothing more than that the defendant had racist views; the ACLU thus recommended that the Senate include an evidentiary provision that would prevent "evidence proving the defendant's mere abstract beliefs" or "evidence of the defendant's mere membership in an organization" from use at trial. This way, a prosecutor could not get someone convicted simply because he had biases against minorities.
An Example of How Hate Crime Legislation Works and Fails
The use and possible misuse of federal civil-rights laws in alleged hate-crime situations can be seen in perhaps the most infamous incident of a crime involving an Asian-American victim. In 1982, Chinese-American Vincent Chin was killed by two white men who reportedly mistook him for a Japanese person and who reportedly blamed the Japanese for the economic woes then plaguing the Detroit area. Chin had encountered Ronald Ebens and Ebens' stepson Michael Nitz at a strip-club that Chin had attended for his pre-wedding bachelor's party; a fight ensued, and Ebens and Nitz ultimately chased Chin for blocks until Ebens beat Chin to death with a baseball bat.
Admitting that he had killed Chin but claiming that he had been drunk and was provoked, Ebens pled guilty in state court to manslaughter and was given probation and a $3,720 fine. With widespread public outrage at the low sentence and with state prosecutors barred from taking further action because of double-jeopardy provisions, federal prosecutors then indicted Ebens and his stepson Michael Nitz for violating 18 USC 245(b)(2)(F), a 1968 law that involved depriving someone of their right to enjoy a public place of accommodation.
At trial in federal court, Ebens was convicted and Nitz acquitted, but Ebens' conviction was then overturned by the Sixth Circuit Court of Appeals in 1986 on several grounds that arguably highlight the dangers in hate-crime prosecution. Because Ebens had admitted committing the actual act, the prosecution only had to prove the reasons why Ebens had killed Chin, specifically, that Ebens had done so because of Chin's race and in order to interfere with Chin's right to enjoy the strip club. However, in trying to prove Ebens' motives, the prosecution and an activist lawyer took improper actions, the Sixth Circuit ruled.
First, an activist lawyer (who had founded an Asian-American advocacy group) had coached eyewitnesses into giving testimony that would show more clearly that Ebens had made racial epithets and that racist and that would help get a conviction; the Sixth Circuit ruled that the defense should have been fully informed of the extent of coaching and should have been allowed to play complete tapes of such sessions to the jury. Second, federal prosecutors improperly used a 1974 incident to show that someone who may have been Ebens had prejudices against blacks; the Sixth Circuit said this was too vague and remote to be admissible evidence as to whether Ebens acted with prejudice towards Chin in 1982. Third, the Sixth Circuit criticized federal prosecutors for injecting personal comments into his closing statement and for using public sentiment to convict rather than ensuring a fair trial.
Federal prosecutors tried to prosecute Ebens again, this time in a different venue, Cincinnati. Ebens was acquitted in 1987 of all charges. Ebens later that year settled a civil lawsuit brought by Chin's estate; Ebens agreed to pay up $200 a month for two years and then 25 percent of his net pay to Chin's estate until the accumulated payments reached $1.5 million, a sum Ebens was unlikely ever to meet.
Sources: Making Hate a Crime: From Social Movement to Law Enforcement, Valerie Jenness and Ryken Grattet (Russell Sage Foundation, 2001). James B. Jacobs and Kimberly Potter, Hate Crimes : Criminal Law & Identity Politics (Oxford University Press, 1998). United States v. Ebens, 800 F.2d 1422 (6th Cir. 1986). Associated Press, Slayer is acquitted of civil rights violation, New York Times, May 2, 1987. Reuters, $1.5 million in wrongful death, New York Times, July 31, 1987. Seth Mydans, 2 of 4 officers found guilty in Los Angeles beating, New York Times, April 18, 1993. The American Civil Liberties Union has a May 11, 1999 statement on the Hate Crimes Prevention Act of 1999 on-line here.
Hate Crimes : Statistics (last updated January 18, 2003) (back to top)
Hate-crime statistics reported to the FBI from 1996 to 2001 show that hate crimes are perpetrated most often against blacks, homosexuals and Jews, but also show that the number of such crimes against Muslims and against people based on their non-Hispanic ethnicity or national origin increased dramatically from 2000 to 2001, probably because of reactions to the September 11, 2001 attacks.
As reported by the FBI, the overall number of hate crimes increased 20 percent from 2000 to 2001 largely based on such crimes directed against Muslims and based on victims' non-Hispanic ethnicity or national origin.
Specific incidents such as the October 1998 murder of Matthew Shepard and the 2001 hate crimes towards Muslims have drawn national attention, but it is still up for debate whether hate-crimes are in fact becoming more common or whether they are simply better reported now. Those who say that the incidence of hate-crimes has risen in recent years may not be taking into account a long-term view of history or making proper comparisons with earlier eras.
The following chart reflects FBI statistics from 1996 to 2001, which includes data from law-enforcement agencies covering roughly 85 percent of the nation; reports from earlier years had considerably fewer agencies reporting and are thus less useful for comparison. For purposes of such data collection, hate crimes are defined by federal law as "crimes that manifest evidence of prejudice based on race, religion, sexual orientation, or ethnicity."
In 2000, with agencies covering 84.2 percent of the nation reporting, there were 8,603 bias-motivated incidents involving 9,430 separate offenses, 9,924 victims, and 7,530 known distinguishable offenders. Of these, most were based on race (53.8 percent), followed by religion (18.3 percent), sexual orientation (16.1%), ethnicity/national origin (11.3 percent), and a small few against the disabled or based on multiple biases.
Racially-motivated hate crimes in 2000 were mostly anti-Black (66%), followed by anti-white (20%) and anti-Asian (6%); Hispanics are not included here but under the anti-ethnicity category. Religion-based hate crimes were mostly against Jews (75%); crimes against Muslims represented 2% of such religion-based hate crimes. Sexual-orientation hate crimes were directed mostly towards male homosexuals (69%) and then against lesbians (14%), with another 14% classified simply as against homosexuals without differentiation between males and females; 2 percent were against heterosexuals.
Most offenses were against persons (65%) and usually involved intimidation (35 percent of all hate-crime offenses) or some kind of non-fatal assault; aggravated assaults were less common, and murders and non-negligent manslaughters were rare. Of the offenses not directed against people, most involved vandalism (29 percent of all hate crimes).
Sources: The FBI's annual hate-crime reports are available on-line here. Making Hate a Crime: From Social Movement to Law Enforcement, Valerie Jenness and Ryken Grattet (Russell Sage Foundation, 2001). James B. Jacobs and Kimberly Potter, Hate Crimes : Criminal Law & Identity Politics (Oxford University Press, 1998).
Gays in the Military : "Don't Ask, Don't Tell, Don't Pursue, Don't Harass" (last updated November 4, 2002) (back to top)
Based on the official belief that the presence of gay service members would undermine morale, discipline and unit cohesion, the military continues to maintain a policy under which service members can be discharged if they are found to be gay or to engage in homosexual acts. The policy was refined in 1993-94 so that the military is not allowed to ask whether members were gay or can investigate only under certain circumstances ("don't ask, don't tell, don't pursue"), though the number of homosexual-conduct discharges each year subsequently rose somewhat, though not to the levels of the early 1980s. The policy was revised and expanded in 2000 to prevent anti-gay harassment, but this aspect reportedly has not been fully implemented.
The issue gained new attention in August 2002 when Harvard Law School announced that it would allow the military to recruit directly on campus in order to comply with the Air Force's new interpretation of the Solomon Amendment, a federal law enacted in 1996 that denies federal funding to a school that "prohibits or in effect prevents" military recruiting. The Air Force had previously found that Harvard Law School complied with federal law by allowing the military to recruit indirectly through a veterans' association, but changed its interpretation in May 2002 and threatened to initiate actions that could have cut federal funding for the entire university.
Military policy has restricted homosexuals from military service since World War I through personnel regulations and through military law prohibiting sodomy, as reported by the RAND Corporation in a 1993 study of the issue.
Initially, the military attempted to screen and exclude homosexuals from service through then-current theories about the causes and manifestations of homosexuality. During World War II, the military continued to separate homosexuals from service, though there was wide variance in how cases were handled and a new willingness to consult with medical and psychological experts. About 2,000 people were discharged for homosexuality each year during World War II, according to the RAND study.
Military policy became more unified and more explicit in preventing homosexuals from serving after World War II. On October 11, 1949, the Department of Defense issued a memorandum that unified military policy towards homosexual behavior, saying that "homosexual personnel, irrespective of sex, should not be permitted to serve in any branch of the Armed Services in any capacity, and prompt separation of known homosexuals from the Armed Forces be made mandatory." And in 1959, homosexual acts was defined as an act of sexual perversion which could be grounds for being discharged as unfit. Even though the military was about ten times smaller than during World War II, about 2,000 people still were discharged for homosexuality each year, the RAND study estimated.
In 1965, military regulations began allowing members facing a less-than-honorable discharge to present their cases before administrative hearings and to be represented by counsel. This allowed service members accused of homosexuality to challenge discharge, and led to a review of the process in the late 1970s and early 1980s. Nevertheless, in 1981, the military reiterated its policy of excluding homosexuals, but now stated that homosexuality alone did not require a misconduct discharge and thus allowed for an honorable discharge. That year, 1,817 service members (comprising 0.086 percent of the army's strength) were discharged for homosexual conduct.
The issue of gays in the military became a widespread political issue in the 1992 presidential campaign. As one of his first acts in office, on January 29, 1993, President Bill Clinton directed then Secretary of Defense Les Aspin to submit a draft executive order "ending discrimination on the basis of sexual orientation in determining who may serve" in the military. Such an order was to be in a manner "consistent with the high standards of combat effectiveness and unit cohesion our Armed Forces must maintain."
That new policy was announced in July 1993, debated through the following months, and then became law on February 28, 1994 as part of the National Defense Authorization Act for the Fiscal Year 1994. Prohibitions against homosexual conduct remained in place. Congress recognized the longstanding prohibition against homosexual conduct in the military and found that the presence of people engaging in homosexual acts in the military would undermine morale, discipline, and unit cohesion.
Accordingly, the act stated that a service member "shall be separated" from service if he or she:
- is found to have engaged in homosexual acts, unless the member can show that such conduct was abnormal for him or her, or
- has stated that he or she is a homosexual or bisexual, unless the member can show that such a statement was incorrect, or
- has married or attempted to marry someone of the same sex.
The change in policy came not in the regulations themselves but in how they were to be implemented. On December 21, 1993, Aspin issued a memorandum and directives ordering that applicants to the military not be asked about his or her sexual orientation, and explaining that only homosexual conduct - rather than status as a homosexual - was a bar to service. Such conduct would include not only acts but also statements indicating a propensity or intent to commit homosexual acts, thus including statements such as "I am a homosexual." Moreover, commanders were to begin inquiries into homosexual conduct only if they have credible information that a basis of discharge exists and are not authorized to search out such information.
Or, as popularly known, "don't ask, don't tell, don't pursue" ("DADTDP").
According to a review of the policy conducted by the Department of Defense in 1998, the number of service members discharged for homosexual conduct has in fact risen since the new policy was implemented. From 1980 to 1997, the number of such discharges fell from a high of 1,998 in 1981 to a low of 617 in 1994, and rose since then to 997 discharges in 1997. Still, even in 1981, these discharges made up less than a tenth of a percent of the overall service population.
Of such discharges, most service members were discharged for statements identifying themselves as homosexuals, rather than for homosexual acts (82 percent of those discharged in 1997 were for statements, and 18 percent for homosexual acts or for same-sex marriages). Most are junior personnel serving less than four years in the military (58 percent of those discharged in 1997 had served less than 1 year, and 24 percent more were discharged after serving less than four years). Less than two percent of those discharged were so discharged under dishonorable conditions.
Besides general criticism of the policy itself, much criticism of the policy towards homosexuals comes in how it is implemented and the reported anti-gay climate that persists. Some say the military continues to initiate investigations improperly and that the military condones harassment and threats towards homosexuals. One group, the Servicemembers Legal Defense Network, has conducted annual reports on the policy, collecting information on alleged instances of such improper implementation.
The military has taken some actions in recent years against anti-gay harassment. In 1999, the Department of Defense issued a memo prohibiting such harassment, and "don't harass" was added to the military's homosexual conduct policy in February 2000. In July 2000, the Department of Defense issued a 13-point anti-harassment action plan which called for all service members to receive training, but that plan reportedly has not been fully implemented.
In March 2000, the Department of Defense Inspector General released a survey that showed that 80 percent of the service members surveyed heard anti-gay remarks within the prior year, 37 percent witnessed or experienced incidents of anti-gay harassment, 9 percent reported anti-gay threats, and 5 percent witnessed or experienced anti-gay physical assaults.
Sources: Don't Ask Don't Tell Don't Pursue is an on-line collection of resources maintained by the Stanford Law Library, available here. National Defense Research Institute, Sexual Orientation and U.S. Military Personnel Policy: Options and Assessment (RAND, prepared for the Office of the Secretary of Defense, 1993). The Servicemembers Legal Defense Network is available here; the site includes the SLDN's annual reports. Statistics on discharges from 1980 to 1997 are taken from the Review of the Effectiveness of the Application and Enforcement of the Department's Policy on Homosexual Conduct in the Military, by the Office of the Under Secretary of the Defense (Personnel and Readiness) (April 1998), available on-line here. Jim Garamone, DoD approves "don't ask, don't tell, don't harass" plans, American Forces Press Service, February 2, 2000, on-line here. Harvard Law School's change in policy is explained in an Aug. 26, 2002 memo, on-line here.
Log Cabin Republicans (last updated July 2001) (back to top)
Founded in the late 1970s to battle the nation's first anti-gay ballot measure, the Log Cabin Republicans are a group of gay conservatives that has grown in numbers and prominence in recent years. Believing in core Republican ideologies such as free markets and national defense, Log Cabin tries to change the Republican party's position on homosexuality from within and also aims to move gay politics away from the Democratic Party, which some feel has taken gay votes for granted.
The Log Cabin Republicans were founded in 1978 in opposition to a California state referendum that would have banned gays and lesbians from teaching in public schools and allowed schools to fire any employee for "advocating, soliciting, imposing, encouraging or promoting" homosexuality. Former California Governor Ronald Reagan, who would begin running for president soon after, declared his opposition to the proposition, and California state voters ultimately rejected the proposition with a 58 percent vote. The Log Cabin Republicans then formed chapters around the country and, motivated and threatened by Pat Buchanan's speech at the 1992 Republican National Convention about a coming cultural war, moved to the national level by opening an office in Washington DC in 1993.
Still, Log Cabin gained its first widespread attention during the 1995 presidential primary campaign when a Bob Dole's campaign publicly returned a $1,000 donation by the LCR. When asked about the check by reporters, Dole campaign manager Scott Reed publicly stated in August 1995 that the Dole campaign would return the donation and that the campaign was in "100 percent disagreement with the agenda of Log Cabin Republicans."
Where did the check come from and why did it become such a big deal?
In his 1999 autobiography, Log Cabin Republicans national chairman Richard Tafel says that the check was a donation in connection to Tafel's attendance at a Dole fundraiser two months earlier, that Dole's campaign had sought out the LCR's support and fundraising, and that Dole had earned the LCR's support through his defense of a bill reauthorizing AIDS funding through the Ryan White CARE Act from Jesse Helms' efforts to stop it.
As Bob Woodward reported in his 1996 book The Choice, however, Dole campaign manager Scott Reed felt that the Log Cabin Republicans had deliberately set up Dole's campaign for self-promotion. With Dole already facing tough competition in the Republican primary, Reed feared that Dole's more conservative opponents would use the Log Cabin Republicans' support against him and thus decided to pre-empt attacks by giving the $1,000 check back.
However the check was returned, Dole was criticized for seeming to pander too to the right and for an inconsistent policy as to whose money he would accept. Two months later, Dole himself said that he had not been consulted about the decision, did not approve of it, and would not have approved it had he known. According to Woodward's account, Dole also privately told people that he supported gay people's fight against discrimination.
And finally, the big question. As for the question how a gay person can be part of the Republican party, Richard Tafel, who was ordained as a Baptist minister in 1988, offers in his book an explanation to what he calls "the question I'm almost always asked."
"I didn't get involved in politics to be liked," Tafel writes. "I got involved because I believe in certain principles of individual rights, less government, and free markets - all traditionally Republican positions. I also hold certain values, and politics is the arena where our society battles for or against those values. I don't like the status quo within my party on gay issues, but I do have a vision of what can be, and I'm working for those changes." (Party Crasher, page 95)
Sources: Richard Tafel, Party Crasher: A gay republican challenges politics as usual (1999). Log Cabin Republicans website. Bob Woodward, The Choice (1996).
Yale : "One in Four, maybe More" (last updated August 25, 2001) (back to top)
"One in four, maybe more." This slogan refers, without much factual basis, to the prevalence of homosexuals in the Yale student body, and it has been around the Yale campus for about 15 years, the legacy of a Wall Street Journal article based on a writer's observations and minimal reporting. A look at the slogan and the controversy around it says something about how bad statistics live on and on how far society has come in acceptance of gays since the 1980s.
Yale University had a rocky period in the late 1980s and early 1990s, with a controversial restructuring of its faculty, debates over Western Civilization's place in the curriculum, and growing fears over the decline of New Haven, especially with the murder of one student and a New Yorker series that depicted the city as a kind of urban hell (written by William Finnegan, reprinted and expanded upon in his 1998 book Cold New World).
And then, on August 4, 1987, a new controversy erupted.
That day, the Wall Street Journal published a piece by Julie V. Iovine about the changes at Yale since she had graduated a decade earlier. The article dealt with fraternities and campus parties, but the first and foremost change described was Yale's new reputation as a gay school. Iovine wrote that a thousand students attended the annual gay-lesbian ball, apparently implying that only gay or lesbian students would go to such a party. She also reported that a student said she had "received a notice before registering freshman year that said one in four Yale students was gay. That would put it on a par with San Francisco."
Iovine also described how one student broke down the gay student population into three three categories: "lipsticks" who were "radical-chic" lesbians; "crunchies" who were "granola dykes who have old-fashioned utopian ideas about feminism;" and assimilationists who "don't want to draw attention to their sexuality." Gay men were described as being mostly assimilationist.
Yale had been previously identified in a 1982 Newsweek article as a school with an unusually visible gay community, but this Wall Street Journal article put Yale on the defensive. In a September 17, 1987 letter sent to about 2,000 volunteer fund-raisers, President Benno Schmidt Jr. attacked the article as "journalistic drivel" and calling its depiction "an extremely misleading picture of the student body." In particular, Schmidt and others attacked Iovine for writing her article after interviewing only three people and not double-checking their assertions.
For example, Schmidt said in his letter that no one at Yale had knowledge of any mailing to incoming students that a quarter of the student population was homosexual. He added in his letter that a 1986 survey by the Yale Daily News, the campus student newspaper, reported that 3 percent of the males and 1 percent of the women in 11 of the 12 residential colleges were homosexual (a head of the school's leading gay, lesbian and bisexual organization estimated at the time that about 10 percent of the student population was homosexual, about the same as other large liberal universities).
"I can understand your concern about the nonsense," Schmidt wrote. "If I thought there were any truth to the article, I would be concerned too.
"The article resorted to innuendo and exaggeration to paint a lurid picture of this place. No responsible newspaper would run such a piece by an unknown writer, not a reporter, and without checking to test for minimal accuracy."
The controversy is long-gone but the statistic remains a fixture in Yale campus life. Its source still remains somewhat unclear.
Sources: Julie V. Iovine, 'Lipsticks' and Lords: Yale's New Look, Wall Street Journal, August 4, 1987, page 32. Nick Ravo, Yale President rebuts story that depicted school as 'gay," September 29, 1987, page B1.
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