Queer history has often existed at odds with the law. Annual Pride celebrations have roots in the Stonewall Uprising, a demonstration against the forced closure of queer spaces and mass arrests of queer people. Reports as recent as 2006 reflect an international struggle for LGBTQ communities across the world to have their rights enshrined in the law.
In the United States, the Lavender Scare and subsequent initiatives against LGBTQ+ folks serving the United States in military, foreign, or civil service became a driver of the LGBTQ+ civil rights movement. Many of these challenges appeared before the Supreme Court, and the U.S. Reports collection contains several of these historical highlights.
LGBTQ+ individuals and groups were historically targeted via legislation, which became the basis for many court cases. The Immigration and Nationality Act of 1952 (66 Stat. 163) was cited in Boutilier v. Immigration Service (387 U.S. 118 (1967)), which contested the deportation of a queer Canadian man on the grounds of his sexuality. The Immigration Service argued that the petitioner could be deported on the grounds of “afflict[ion] with [a] psychopathic personality,” and that, “beyond a shadow of a doubt…the Congress intended the phrase “psychopathic personality” to include homosexuals.” (Boutilier at p. 120) It is also worth noting that the same language was used in the Immigration Acts of 1917 (39 Stat. 874) and 1924 (43 Stat. 153).
The dissent, led by William O. Douglas, stated: “[i]t is therefore not credible that Congress wanted to deport everyone and anyone who was a sexual deviate, no matter how blameless his social conduct had been nor how creative his work nor how valuable his contribution to society.”
During the era of the AIDS epidemic and its aftermath, the struggle for LGBTQ+ rights continued in the courtrooms. The right to privacy for LGBTQ+ individuals was addressed in Bowers v. Hardwick and later Lawrence v. Texas (478 U.S. 186 (1986) and 539 U.S. 558 (2003) respectively).
The Constitution was also cited in many cases. In 1995, a unanimous decision in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (515 U.S. 557 (1995)) upheld the exclusion of the Irish-American Gay, Lesbian, and Bisexual Group of Boston, Massachusetts, from a St. Patrick’s Day/Evacuation Day parade on the grounds that the organizers, the South Boston Allied Veteran’s Council, were protected by the First Amendment right to freedom of speech:
“…the state courts’ peculiar application of the Massachusetts law essentially forced the Council to alter the parade’s expressive content and thereby violated the fundamental First Amendment rule that a speaker has the autonomy to choose the content of his own message and, conversely, to decide what not to say.” David Souter, p. 572-73.
This decision overturned previous trial court and Massachusetts Supreme Judicial Court rulings against the organizers.
The Romers v. Evans (517 U.S. 620 (1996)) decision stated that a constitutional amendment preventing the Colorado state government from taking action to “protect the status of persons based on their [LGBTQ+] orientation, conduct, practice, or relationships” violated the Equal Protection Clause of the 14th Amendment.
“Even if, as the State contends, homosexuals can find protection in laws and policies of general application, Amendment 2 goes well beyond merely depriving them of special rights. It imposes a broad disability upon those persons alone, forbidding them, but no others, to seek specific legal protection from injuries caused by discrimination in a wide range of public and private transactions.” Anthony Kennedy, p. 620-621.
This Pride month, we encourage you to learn more about the history of the LGBTQ+ community and the law in the Library of Congress’s LGBTQ+ resources. Further Supreme Court cases can be found on the Selected Legal Milestones page.
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