BRIEF OF THE ORGANIZATION OF AMERICAN HISTORIANS AS AMICUS CURIAE IN SUPPORT OF PETITIONERS _________ STATEMENT OF INTEREST
_________ The Organization of American Historians (OAH) respectfully submits this brief as amicus curiae in support of Petitioners.
Founded in 1907, the OAH is the largest scholarly organization devoted to promoting the study and teaching of American history. Its distinguished Journal of American History, annual meetings, and public service activities aim to promote excellence in the scholarship, teaching, and presentation of American history. The OAH is an international, nonprofit membership organization, whose 7,800 historian members include university and college professors in the United States and abroad, as well as individuals employed in a variety of scholarly and institutional settings, such as libraries, museums, and historical societies.
The late Kenneth M. Stampp, historian and past president of OAH, wrote: “With the historian it is an article of faith that knowledge of the past is a key to understanding the present.” THE PECULIAR INSTITU- TION: SLAVERY IN THE ANTE-BELLUM SOUTH vii (1956). The OAH adheres to this principle, and has an interest—not as an advocate of a particular legal standard, but as a steward of history—in ensuring that the Court is presented with an accurate descrip- tion of the history of discrimination against gay men and lesbians in America. ican history. The OAH is an international, nonprofit membership organization, whose 7,800 historian members include university and college professors in the United States and abroad, as well as individuals employed in a variety of scholarly and institutional settings, such as libraries, museums, and historical societies.
￼INTRODUCTION AND ￼SUMMARY OF ARGUMENT
... In answering the question presented in this case, the Court will consider, among other things, whether “[a]s a historical matter” a particular class of persons “ha[s] been subjected to discrimination.” Bowen v. Gilliard, 483 U.S. 587, 602 (1987) (citation omitted). The OAH offers this Brief to inform the Court that gay and lesbian people have been subject to wide- spread and significant discrimination and hostility in the United States.
Sexual intimacy between people of the same sex has been condemned by “powerful voices” for centu- ries. Lawrence v. Texas, 539 U.S. 558, 571 (2003). In twentieth century America, discrimination against gay people reached remarkable proportions.
In the first half of the century, for example, the State of New York prohibited theaters from staging plays with lesbian or gay characters, many states prohibit- ed bars and restaurants from serving gay people, and the federal government banned gay people from em- ployment. Until the 1960s, all states outlawed sexu- al intimacy between men. Many municipalities launched police campaigns to suppress gay meeting places and sought to purge gay civil servants from employment. These policies worked to create and reinforce the belief that gay men and lesbians com- prised an inferior class of people to be shunned by other Americans.
Official discrimination was accompanied by private condemnation of homosexuality and discrimination against gay people, with a similarly enduring nega- tive effect. Hollywood studios enforced a censorship code that for decades prohibited the discussion of gay issues or the appearance of gay or lesbian characters in film; press campaigns fostered frightening stereo- types of homosexuals as child molesters; and leading medical associations declared that homosexuality was a pathological condition or disease. These stere- otypes had profound consequences, and they contin- ue to inspire public fears and hostility.
Gay men and lesbians saw their situation begin to improve in the 1970s. But their limited gains precip- itated a powerful opposition movement that initiated scores of referendum campaigns to repeal or prohibit newly-won protections against discrimination. No other group in American history has been confronted with as many referenda designed to take away its rights. ￼In the 1980s, the early press coverage of of ￼AIDS reinforced the view that homosexuals we ￼who identified as lesbian often lost custody of their ￼children.
Despite social and legal progress in the past thirty years, gay men and lesbians continue to live with the legacy of anti-gay laws and hostility. In most states, gay men and lesbians still lack protection from dis- crimination in schools, employment, housing, and public accommodations. State laws discriminating against gay men and lesbians remain on the books. Two states formally prohibit adoptions by same-sex couples, and adoption agencies in many other states continue to favor heterosexual couples over same-sex couples. Well over a thousand gay men, lesbians, bi- sexuals, and transgendered people are the victims of hate crimes every year.
When marriage emerged as the new flashpoint in debates over gay civil rights, the debate was shaped by this legacy, which initially prompted many Amer- icans to respond to the idea of same-sex marriage with the same hostility with which they previously greeted the idea of openly gay teachers or television characters or laws prohibiting discrimination against gay people. Opponents of marriage equality, many of whom previously led campaigns against other gay rights measures, have deployed enduring anti-gay stereotypes to great effect. The approval of laws and constitutional amendments limiting marriage to one man and one woman in a total of forty-one states demonstrates the continuing influence of anti-gay hostility and the persistence of ideas about the ine- quality of gay people and their relationships.
I. GAY AND LESBIAN PEOPLE HAVE BEEN SUBJECT TO WIDESPREAD AND SIGNIFI- ￼CANT DISCRIMINATION IN THE UNITED STATES
A. ￼￼The Historical Roots of Discrimination Against ￼Gay People
The first laws against sex between men in the American colonies were rooted in early settlers’ un- derstanding of ancient Judeo-Christian prohibitions against sodomy and “unnatural acts.” Some Puritan New England colonies quoted scripture in their laws, while the southern and middle colonies generally drew on the secular laws against “buggery” enacted by the English Reformation Parliament of 1533. Wil- liam Eskridge, Jr., Law and the Construction of the Closet: American Regulation of Same-Sex Intimacy, 1880-1946, 82 IOWA L. REV. 1007, 1012-13 (1997). “Sodomy” did not mean precisely the same thing as today’s “homosexual conduct,” and colonial laws pe- nalized many other forms of non-procreative sexual behavior. But Puritan clergy vigorously condemned the “unnatural uncleanness *** when men with men commit filthiness, and women with women,” in part because they worried that all people were sub- ject to such temptations. Richard Godbeer, “The Cry of Sodom”: Discourse, Intercourse, and Desire in Co- lonial New England, 52 WILLIAM & MARY Q. 259, 264-265 (1995).
￼ ￼B. Modern American History: 1890-1940
￼Most historians now agree that the concept of the ￼homosexual and the heterosexual as distinct categories of people emerged only in the late nineteenth century. JONATHAN NED KATZ, THE INVENTION OF HETEROSEXUALITY 10 (1995). The growth of Ameri- can cities in the same period permitted homosexuals to develop an extensive collective life to which some Americans responded with fascination and sympa- thy, and many others with dread. Prosecutions for sodomy and related offenses increased dramatically in the late nineteenth century, and the policing of gay life escalated in the first decades of the twentieth century. See GEORGE CHAUNCEY, GAY NEW YORK: GENDER, URBAN CULTURE, AND THE MAKING OF THE GAY MALE WORLD, 1890-1940, at 132-141, 147, 256, 271-273 (1994).
Hostile Medical and Religious Views Encouraged the Escalation of Anti-Gay Policing. Hostility toward homosexuals was at times motivated by uneasiness about the dramatic changes underway in gender roles at the turn of the last century. In this era— indeed until 1973—homosexuality was classified as a disease, defect, or disorder. Many physicians initial- ly argued that the homosexual (or “sexual invert”) was characterized as much by his or her violation of conventional gender roles as by sexual interests. Numerous doctors identified suffragists, women en- tering the professions, and other women challenging the limits placed on their sex as victims of a medical disorder. Thus, doctors explained that “the female possessed of masculine ideas of independence” was a “degenerate” and that “a decided taste and tolerance for cigars, * * * [the] dislike and sometimes incapaci- ty for needlework * * * and some capacity for athlet- ics” were all signs of female “sexual inversion.” Simi- larly, a doctor thought it significant that a male “pervert” “never smoked and never married; and was entirely averse to outdoor games.” George Chauncey, From Sexual Inversion to Homosexuality: Medicine and the Changing Conceptualization of Female De- viance, 58-59 SALMAGUNDI 114, 119-121, 124, 139- 141 (1982-1983) (brackets, citations, and quotation marks omitted).
Doctors for decades continued to identify homosex- uality per se as a “disease,” “mental defect,” “disor- der,” or “degeneration.” Such medical pronounce- ments provided “a powerful source of legitimation to anti-homosexual sentiment, much as medical science had previously legitimized widely held (and subse- quently discarded) beliefs about male superiority and white racial superiority.” GEORGE CHAUNCEY, WHY MARRIAGE? THE HISTORY SHAPING TODAY’S DEBATE OVER GAY EQUALITY 17 (2004).
Religiously inspired hostility to homosexuality also inspired an escalation in anti-gay policing. In the late nineteenth century, native-born Protestants or- ganized “anti-vice” societies to suppress what they regarded as the sexual immorality and social disor- der of the nation’s burgeoning Catholic and Jewish immigrant neighborhoods—including the growing visibility of homosexuality. In New York City in the 1910s and 1920s, for instance, the Society for the Suppression of Vice (also known as the Comstock So- ciety) worked closely with the police to arrest several hundred men for homosexual conduct. In Massachu- setts, the Watch and Ward Society, established as the New England Society for the Suppression of Vice, conducted surveillance on virtually all the popular gay bars and gathering places of the time. See PAUL BOYER, URBAN MASSES AND MORAL ORDER IN AMERI- CA, 1820-1920, at 207 (1978); CHAUNCEY, GAY NEW YORK 137-141, 146-147, 249-250; JOHN D’EMILIO & ESTELLE B. FREEDMAN, INTIMATE MATTERS: A HISTORY OF SEXUALITY IN AMERICA 150-153 (2d ed. 1997); THE HISTORY PROJECT, IMPROPER BOSTONIANS: LES- BIAN AND GAY HISTORY FROM THE PURITANS TO PLAY- LAND 121-122 (1998).
Police Harassment. Responding to pressure from Protestant moral reform organizations, police forces began using misdemeanor charges—disorderly con- duct, vagrancy, lewdness, loitering, and the like—to harass homosexuals and keep them from meeting in public. CHAUNCEY, WHY MARRIAGE? 10. In 1923, the New York State Legislature specified that a man’s “frequent[ing] or loiter[ing] about any public place soliciting men for the purpose of committing a crime against nature or other lewdness” was a form of dis- orderly conduct. Many more men were arrested and prosecuted under this charge than for sodomy; in the next forty years, there were more than 50,000 ar- rests on this charge in New York City alone. CHAUNCEY, GAY NEW YORK 172; George Chauncey, A Gay World, Vibrant and Forgotten, N.Y. TIMES, June 26, 1994, at E17.
The earliest gay activists also fell victim to police harassment. In 1924, for example, Chicago police raided the home of the founder of the nation’s earli- est known gay political group and seized the group’s files. JONATHAN NED KATZ, GAY AMERICAN HISTORY: LESBIANS AND GAY MEN IN THE U.S.A. 385, 388-391 (1976).
Censorship. The growing visibility of lesbian and gay life in the early twentieth century precipitated censorship campaigns designed to curtail gay peo- ple’s freedom of speech and the freedom of all Ameri- cans to discuss gay issues. In 1927, police arrested the cast of “The Captive,” an acclaimed Broadway drama exploring one woman’s unrequited love for another. New York State then passed a “padlock law” forbidding theaters from staging plays with gay or lesbian characters. ANDREA FRIEDMAN, PRURIENT INTERESTS: GENDER, DEMOCRACY, AND OBSCENITY IN NEW YORK CITY, 1909-1945, at 108-116 (2000). Bos- ton’s mayor banned “The Children’s Hour,” a play dealing with lesbianism, because it “showed moral perversion, the unnatural appetite of two women for each other.” THE HISTORY PROJECT, IMPROPER BOS- TONIANS 121-122.
Censorship also spread to the movies. A movement led by religious leaders threatened Hollywood studi- os with boycotts and restrictive federal legislation if they did not begin censoring their films. This prompted the studios to establish a production code that, beginning in 1934, prohibited the inclusion of gay or lesbian characters or even the “inference” of “sex perversion” in Hollywood films. This code re- mained in effect for some thirty years, effectively prohibiting discussion of homosexuality in one of the nation’s most powerful media for more than a gener- ation. CHAUNCEY, GAY NEW YORK 353 & n.57. See generally GREGORY D. BLACK, THE CATHOLIC CRU- SADE AGAINST THE MOVIES, 1940-1975 (1997); VITO RUSSO, THE CELLULOID CLOSET: HOMOSEXUALITY IN THE MOVIES (1991).
Constraints on Freedom of Association. New regu- lations began to curtail gay people’s freedom of asso- ciation at the same time they were pushed off stage and screen. The New York State Liquor Authority, for instance, issued regulations shortly after Prohibi- tion’s repeal in 1933 prohibiting bars, restaurants, cabarets, and other establishments with liquor li- censes from serving or employing homosexuals or al- lowing them to congregate on their premises. When courts rejected the Authority’s argument that the mere presence of homosexuals made an establish- ment “disorderly,” the Authority began using evi- dence of unconventional gender behavior or homo- sexual solicitation to establish a bar’s “disorderly” character, closing hundreds of bars on this basis in the next thirty years. CHAUNCEY, GAY NEW YORK 335-349. Similar regulations and laws were enacted elsewhere. In the 1950s, for example, California’s Alcoholic Beverage Control Board ruled that acts of touching, women wearing mannish attire, and men with limp wrists, high-pitched voices, and/or tight clothing were evidence of a bar’s “dubious character” and grounds for closing it. NAN ALAMILLA BOYD, WIDE-OPEN TOWN: A HISTORY OF QUEER SAN FRAN- CISCO TO 1965, at 136-137 (2003)....