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Although the United States of America has become more liberal towards Lesbian, gay, bisexual, and transgender (LGBT) people, LGBT persons in the United States still face legal challenges not experienced by non-LGBT citizens. Five states (Massachusetts, Connecticut, Iowa, Vermont, New Hampshire) have legalized same-sex marriage.

Sexual acts between persons of the same sex have been legal nationwide in the USmarker since 2003, pursuant to the US Supreme Court ruling in Lawrence v. Texas. Openly lesbian and gay members of the US military are subject to the US's "Don't ask, don't tell" policy, but U.S. President Barack Obama indicated during the 2008 presidential campaign his desire to end this policy, though his administration asked the Supreme Court to not hear a case challenging the policy as unconstitutional.

The most visible LGBT-specific political issue in the United States in the 2000s is government recognition of same-sex relationships. Six states currently offer marriage to same-sex couples. California performed same-sex marriages in 2008, but in November of that year, voters passed Proposition 8, banning same-sex marriage in the state through an amendment to the state constitution. Opponents of the ban are seeking to overturn Proposition 8 in court. Additionally, some states offer civil unions or other types of recognition which offer some of the legal benefits and protections of marriage. Twenty states outlaw discrimination based on sexual orientation, and 13 states outlaw discrimination based on gender identity or expression.

Adoption policies in regards to gay and lesbian parents vary greatly from state to state. Some allow adoption by same-sex couples, while others ban all "unmarried couples" from adoption. Mississippi bans adoptions by "two people of the same sex" regardless of the nature of the relationship between them. Florida is the only state in the US that prohibits a single lesbian or gay person from adopting.

History

Background

In the United States, as early as the turn of the twentieth century several groups worked in hiding to avoid persecution to advance the rights of homosexuals, but little is known about them ( Norton 2005).

A better documented group is Henry Gerber’s Society for Human Rights (formed in Chicago in 1924), which was quickly suppressed ( Bullough 2005). Serving as an enlisted man in occupied Germany after World War I, Gerber had learned of Magnus Hirschfeld’s pioneering work. Upon returning to the U.S. and settling in Chicagomarker, Gerber organized the first documented public homosexual organization in America and published two issues of the first gay publication, entitled Friendship and Freedom.

In 1948, Sexual Behavior in the Human Male was published by Alfred Kinsey, a work which was one of the first to look scientifically at the subject of sexuality. Kinsey's claim, that approximately 10% of the adult male population (and about half that number among females) were predominantly or exclusively homosexual for at least three years of their lives, was a dramatic departure from the prevailing beliefs of the time. Before its publication, homosexuality was not a topic of discussion, generally, but afterwards it began to appear even in mainstream publications such as Time magazine, Life magazine, and others.

Despite the entry of the subject into mainstream consciousness, little change in the laws or mores of society was seen until the mid-1960s, the time the sexual revolution began. This was a time of major social upheaval in many social areas, including views of sexuality.

Gay liberation

In the late 1960s, the more socialistic "liberation" philosophy that had started to create different factions within the civil rights, Black Power, anti-war, and feminist movements, also engulfed the homophile movement. A new generation of young gay and lesbian Americans saw their struggle within a broader movement to dismantle racism, sexism, western imperialism, and traditional mores regarding drugs and sexuality. This new perspective on Gay Liberation had a major turning point with the Stonewall riots in 1969.

On June 27, 1969 the police raided a gay bar, which was a common practice at the time. This type of raid, which was often conducted during city elections, had a new development as some of the patrons in the bar began actively resisting the police arrests. Some of what followed is in dispute, but what is not in dispute is that for the first time a large group of LGBT Americans who had previously had little or no involvement with the organized gay rights movement rioted for three days against police harassment and brutality. These new activists were not polite or respectable but rather angry activists that confronted the police and distributed flyers attacking the Mafia control of the gay bars and the various anti-vice laws that allowed the police to harass gay men and gay drinking establishments. This second wave of the gay rights movement is often referred to as the Gay Liberation movement to draw a distinction with the previous homophile movement.

New gay liberation organizations were created such as the Gay Liberation Front (GLF) in New York Citymarker and the Gay Activists Alliance (GAA). In keeping with the mass frustration of LGBT people, and the adoption of the socialistic philosophies that were being propagated in the late 1960s–1970s, these new organizations engaged in colorful and outrageous street theatre ( Gallagher & Bull 1996). The GLF published "A Gay Manifesto" that was influenced by Paul Goodman working titled “The Politics of Being Queer” (1969).

The gay liberation movement spread to countries throughout the world and heavily influenced many of the modern gay rights organizations. Today, LGBT people commemorate the Stonewall riots by annual marches that became known as gay pride parades and marches. However, the split among gay rights organization between the liberal-reformist homophile versus the socialistic gay liberationist philosophy still exists. Today, organizations such as the Human Rights Campaign follow a more mainstream, middle class-oriented and reformist tradition, while other organizations such as the National Gay and Lesbian Task Force (NGLTF) try to be grassroots-oriented and support local and state groups to create change from the ground up.

Gay Migration

In the 1970s many gay people moved to San Franciscomarker. Harvey Milk, a gay man, was elected to the city's Board of Supervisors, a legislative chamber often known as a city council in other municipalities. Milk was assassinated in 1978 along with the city's mayor, George Moscone. The White Night Riot on May 21, 1979 was a reaction to the manslaughter conviction and sentence given to the assassin, Dan White, which were thought to be too lenient. Milk played an important role in the gay migration and in the gay rights movement in general.

The first national gay rights march in the United States took place on October 14, 1979 in Washington, D.C.marker, involving perhaps as many as 100,000 people.

Historian William A. Percy considers that a third epoch of the gay rights movement began in the early 1980s, when AIDS received the highest priority and decimated its leaders, and lasted until 1998, when HAART made AIDS a chronic illness in developed countries ( Percy & Glover 2005). It was during this era that direct action groups such as ACT UP were formed.

Civil rights laws

Owing to the United States' federal system and the diversity in attitudes toward LGBT rights, the status of LGBT civil rights in the U.S. is at present a patchwork. At the federal level, there is no recognition of same-sex unions and no laws forbidding employment discrimination against LGBT persons. Some states have enacted such laws, however.

Family law

In 1972, the Supreme Court of Minnesota in Baker v. Nelson ruled that it did not violate the federal Constitution for a state to deny a civil marriage license to a same-sex couple. The controversy over same-sex marriage was revived in 1993, when the Hawaii Supreme Court ruled that the state constitutional ban on sex discrimination meant that same-sex couples were entitled to a civil marriage license unless the state could prove a compelling state interest. [220235]. A separate court in Hawaii found that the state had failed to show such a compelling interest[220236], and same-sex marriage was legal in Hawaii for a day, before the judge stayed his ruling, and the state constitution was amended in 1998 to restrict marriage to different-sex couples.

While the events in Hawaii did not actually lead to effective marriage rights for same-sex couples, they helped prompt the United States Congress to enact the Defense of Marriage Act in 1996, which forbade the federal government from recognizing same-sex unions and permitted states to decide for themselves whether to recognize same-sex unions performed in other jurisdictions; until that point, there had been a controversy over whether states would be required to extend marriage rights to couples married in other states. The rights and responsibilities of marriage granted at the federal level, thus, do not apply to same-sex unions. Several states followed Congress and enacted similar laws denying recognition of marriage or other forms of union between two persons of the same sex.

In 1999, the Vermont State Supreme Court ruled in Baker v. Vermont that the state had to offer the legal benefits and responsibilities of civil marriage to same-sex couples, and thus the state legislature enacted a civil unions bill. The Massachusettsmarker Supreme Court made a similar decision in case of Goodridge v. Department of Public Health (2004), except the court ruled that state had to either transform all civil marriages into civil unions or offer civil marriage to same-sex couples. Since 2004 marriage is open in Massachusetts.

In 2007 a similar decision in Iowa ruled that restriction of marriage to opposite-sex couples is discriminatory. The decision was stayed to allow the state government time to appeal, but not before one same-sex couple had been legally issued a marriage license.

These state court opinions prompted calls for a Federal Marriage Amendment, along with state amendments to ensure that courts would not change the civil definition of marriage. As of 2007, the legal options available to same-sex couples depends on what state they reside in.

State legislatures in Coloradomarker (2009), Mainemarker (2004), Connecticutmarker (2005), Californiamarker (1999), Hawaiimarker (1997), Wisconsinmarker (2009), Nevadamarker (2009), New Jerseymarker (2007), Washingtonmarker (2007), New Hampshiremarker (2008), Oregonmarker (2008), Marylandmarker (2008), Vermontmarker (2000) and the DCmarker (2002) have enacted either civil unions or more limited domestic partnership options for same-sex couples.

However, a backlash of these efforts was felt during the 2004 election cycle where fourteen states amended their constitution to ban legal recognition of same-sex marriages and often civil unions as well. Mississippimarker voters amended their constitution, 86% to 14% - the largest margin in any state, to ban same-sex marriage and to prohibit the state from recognizing same-sex marriages which are legal elsewhere. Laws in Virginiamarker, Michiganmarker, Nebraskamarker and Ohiomarker, the most far-reaching, forbids recognition of any benefits similar to those of marriage between people of the same sex.

Recent polls have consistently shown that the nation can be divided into roughly equal thirds: one third supports gay marriage completely, another supports only civil unions, and the last is against any form of union entirely [220237][220238]. However, in terms of attitudes to homosexuality, the United States can hardly be called one country. It is common for polls to show a clear majority support for gay marriage in Northeastern states, and occasionally (but less frequently), Pacific Coast states. States which have consistently shown a majority support for gay marriage for at least the past few years include Massachusetts, Vermont, Connecticut, Rhode Island, New York[220239], New Jersey[220240], New Hampshire, and the capital as well as (occasionally) Hawaii, Oregon and Washington. While the majority of these states do not (currently) have gay marriage, Iowa, in fact, which does have gay marriage, does not have majority support, in fact, polls place support in the high thirties or early forties (still slightly higher than the national average). In New York, meanwhile, where there is a pretty clear majority support (and has been consistently reported as at least a four-point lead since 2005), there is neither marriage nor civil unions as of currently. Nonetheless, Iowa falls into a second category of states, where the incoming voting generation overwhelmingly supports gay marriage: those under thirty have support placed in the sixties. [220241][220242]

Furthermore, it is a minority of states that don't even support civil unions; however, this is not reflected in the laws of the majority- a small minority actually have civil unions (and most of those, in turn, now support an upgrade to total marriage) and a majority of states have constitutional amendments similar to those of Virginia and Ohio, banning not only marriage but also unions. Many of these states, especially Wisconsin, actually have majority, even sometimes an overwhelming majority (over 65-70 percent) support of civil unions. Even Utah, a state largely known as extremely conservative, has recently been shown to have a slight majority backing of civil unions.

On the other hand, however, to contrast this, there is a polarity to the country. While New Englandmarker, Pacific Coast and northern Middle Atlantic states may have support for full-fledged marriage, polls have revealed that even in recent times, states in the deep south still support homosexuality being completely illegal, and overwhelmingly oppose marriage-like rights or same-sex marriage. This sharp division of support does not exist among the EU countries and there is no EU country that is in favor of homosexuality being illegal (though some countries that aspire to join the EU, such as Ukrainemarker, do). Due to the diversity of opinions within the US, it is generally viewed by LGBT-activists that the best way to speak of the US is state-by-state.

A single gay person or a same-sex couple can adopt in some locations, although there are fewer locations where they may adopt children jointly with their partners.

Anti-discrimination laws

Employment discrimination

Animation showing the evolution of U.S.
LGBT employment discrimination laws.
Employment discrimination refers to discriminatory employment practices such as bias in hiring, promotion, job assignment, termination, and compensation, and various types of harassment. In the United States there is "very little statutory, common law, and case law establishing employment discrimination based upon sexual orientation as a legal wrong." Some exceptions and alternative legal strategies are available. President Bill Clinton's Executive Order 13087 (1998) prohibits discrimination based on sexual orientation in the competitive service of the federal civilian workforce, and federal non-civil service employees may have recourse under the due process clause of the U.S. Constitution. Private sector workers may have a Title VII action under a quid pro quo sexual harassment theory, a "hostile work environment" theory, a sexual stereotyping theory, or others.

Twenty-one states, the District of Columbiamarker, and over 140 cities and counties have enacted such bans. The states banning sexual orientation discrimination in employment are Californiamarker, Coloradomarker, Connecticutmarker, Delawaremarker, Hawaiimarker, Illinoismarker, Iowamarker, Mainemarker, Marylandmarker, Massachusettsmarker, Minnesotamarker, Nevadamarker, New Hampshiremarker, New Jerseymarker, New Mexicomarker, New Yorkmarker, Oregonmarker, Rhode Islandmarker, Vermontmarker, Washington, and Wisconsinmarker (the first state to do so, in 1982). Four states have laws prohibiting sexual orientation discrimination in public workplaces only: Indiana, Michigan, Montana, and Pennsylvania. On November 22, 2007, Michigan governor Jennifer Granholm issued an order guarding the rights of transgender men and women. She prohibited discrimination of state workers based on gender identity or expression.. Many of these laws also ban discrimination in other contexts, such as housing or public accommodation. A proposed bill to ban anti-gay employment discrimination nationwide, known as the Employment Non-Discrimination Act (ENDA), has been introduced in the U.S. Congress, but its prospects of passage were not believed to be good when there was a Republican-controlled Congress. However, the Democratic victory at the 2006 mid-term elections may present a new opportunity for the bill to pass.

Thirteen states had reformed their state civil rights code (or experienced court decisions) to include sexual orientation and gender identity, while another seven had amended their civil rights code to only include sexual orientation [220243]. Aside from state law, about a hundred cities in thirty three states had enacted some type of civil rights legislation that includes sexual orientation.

Housing discrimination

Housing discrimination refers to discrimination against potential or current tenants by landlords. In the United States, there is no federal law against such discrimination on the basis of sexual orientation or gender identity, but at least thirteen states and many major cities have enacted laws prohibiting it. See, for example, Washington House Bill 2661.

Hate crime laws

[[File:Map of LGBT-related hate crime law in the United States.svg|thumb|right|Current U.S. LGBT hate crimes laws by state.

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Hate crime laws (also known as bias crimes laws) protect against crimes motivated by feelings of enmity or animus against a protected class. Until 2009, statutes permitted federal prosecution of hate crimes committed on the basis of a person's race, color, religion, or nation origin when engaging in a federally protected activity (see 1969 hate crime law). On April 29, 2009, the House of Representatives passed H.R.1913, the Local Law Enforcement Hate Crimes Prevention Act of 2009, which would expand the definition of hate crimes in federal law to include gender, sexual orientation, gender-identity, and disability. The legislation would also remove the prerequisite that victims of hate crimes be engaging in a federally protected activity (see Matthew Shepard Act). On July 16, 2009, the US Senate also passed a Hate Crimes bill, originally S.909, as an amendment to the 2009 Defense Appropriations bill. On October 8, 2009, the House of Representatives voted 281 to 146 to approve the Conference Report Department of Defense Authorization, which contained the hate crimes provisions. On October 22, 2009, the U.S. Senate voted 68 to 29 to approve the Conference Report Department of Defense Authorization, which contained the hate crimes provisions. On October 28, 2009 President Obama signed the bill into law.

The DOJmarker/FBImarker, as well as campus security authorities, are required to collect and publish hate crime statistics (see Hate Crime Statistics Act and Campus Hate Crimes Right to Know Act).

45 states and the District of Columbia have statutes criminalizing various types of bias-motivated violence or intimidation (the exceptions are ARmarker, GAmarker, INmarker, SCmarker, and WYmarker). Each of these statutes covers bias on the basis of race, religion, and ethnicity; 32 of them cover sexual orientation; 32 cover disability; 28 cover gender; 13 cover age; 11 cover transgender/gender-identity; 5 cover political affiliation. 31 states and the District of Columbia have statutes creating a civil cause of action, in addition to the criminal penalty, for similar acts. 27 states and the District of Columbia have statutes requiring the state to collect hate crime statistics; 16 of these cover sexual orientation.

In Wisconsin v. Mitchell (1993) the Supreme Courtmarker unanimously held that state penalty-enhancement laws for hate crimes were constitutional and did not violate First Amendment rights to freedom of thought and expression.

Reparations

Reparations for gays and lesbians in the United States were first proposed by Robert DeKoven, a professor at California Western School of Law in San Diego. DeKoven cited the examples of the European Court of Human Rightsmarker as a model. New York University Professor and lawyer Jacob Appel was the first pundit to champion such a cause in a mainstream media outlet. However, such proposals remain highly controversial.

Important Supreme Court decisions

[[File:Map of US sodomy laws.svg|thumb|US sodomy laws by the year when they were repealed or struck down. Sodomy laws remaining as of 2003 were struck down by the U.S.marker Supreme Courtmarker in Lawrence v. Texas

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In 1958, the Supreme Court of the United States reversed a lower court's ruling and thus, established a precedent that a homosexual publication was not intrinsically "obscene" and thus protected by the First Amendment.

On May 22, 1967, the Supreme Court of the United States upheld the Immigration and Nationality Act of 1952, which among other things banned homosexuals, as constitutional. This ban remained in effect until 1991 [220244].

In 1972, a Tacoma teacher of 12 years with a perfect record was terminated after a high school student outed him to the principal. On October 3, 1977, the Supreme Court refused to hear the case on appeal. While this is not an official judgement on the merit of the case, it did uphold a lower court's ruling that becoming a "known homosexual" automatically impaired his efficiency as a teacher which used various methods to support this claim: 1. Defined homosexuality based on the New Catholic Encyclopedia which deemed the act as implicitly immoral; 2. An "immoral" person could not be trusted to instruct students as his presence would be inherently disruptive. Justice Charles Horowitz based the Court's conclusion of Gaylord v. Tacoma School District No. 10 solely on the testimony of one student, three teachers and administration who objected to a known homosexual teaching at the school because it "would create problems" from the presence of such faculty. This landmark case is significant as it was the first homosexual discrimination case decision to be aired on national network news. In fact, it was simultaneously aired on all three national evening news networks totaling approximately 60 million viewers.

In 1985, the Supreme Court refused to hear an appeal of Gay Student Services v. Texas A&M University, letting stand an appellate ruling ordering the university to provide official recognition of a student organization for homosexual students. The case set a national precedent by removing legal restrictions against gay rights groups on college campuses.

On June 30, 1986, the Supreme Court of the United States ruled in Bowers v. Hardwick, that homosexual sex was not protected under the right to privacy.

On May 20, 1996, the Supreme Court of the United States ruled in Romer v. Evans against an amendment to the Colorado state constitution that would have prevented any city, town or county in the state from taking any legislative, executive, or judicial action to protect homosexual citizens from discrimination on the basis of their sexual orientation.

On March 4, 1998, the Supreme Court of the United States ruled in the case Oncale v. Sundowner Offshore Services that federal laws banning on-the-job sexual harassment also applied when both parties are the same sex. The lower courts, however, have reached differing conclusions about whether this ruling applies to harassment motivated by anti-gay animus.

On June 28, 2000, the Supreme Court of the United States ruled that the Boy Scouts of America had a First Amendment right to exclude people from its organization on the basis of sexual orientation, irrespective of any applicable civil rights laws.

On June 26, 2003, the United States Supreme Court ruled in Lawrence v. Texas that laws against sodomy or anal sex cannot be directed at homosexuals alone, and furthermore, that intimate consensual sexual conduct is part of the liberty protected by substantive due process under the Fourteenth Amendment. The majority opinion, written by Justice Anthony Kennedy, explicitly overrules Bowers v. Hardwick [220245].

LGBT interest groups

In the 21st century, defending homosexuals against homophobia and gay bashing and other forms of discrimination is a major element of American gay rights, something gay rights groups see as part of a broader struggle for human rights. Among the voices for the LGBT community are Human Rights Campaign (HRC) and National Gay and Lesbian Task Force (NGLTF or The Task Force). The ideological split is seen between these two organizations. The Task Force is usually seen as more progressive and left of center, whereas HRC is seen as more centrist. Progressive gay rights organizations include the Empowering Spirits Foundation (Empowering Spirits or ESF), the Gay & Lesbian Victory Fund, The National Gay and Lesbian Task Force, the National Center for Transgender Equality (NCTE), Parents, Families and Friends of Lesbians and Gays (PFLAG) and the Gay & Lesbian Alliance Against Defamation (GLAAD) and various local gay community centers. Gay rights organizations include the Log Cabin Republicans, the Independent Gay Forum and even other organizations have arisen such as Gays and Lesbians for Individual Liberty and the Outright Libertarians. The United States Green Party has an LGBT Lavender Greens caucus. Freedom to Marry is the leading advocate for same-sex marriage. Denominations that have supported same-sex marriage include the Unitarian Universalist Association, the Episcopal Church, the United Church of Christ, and the Metropolitan Community Church.

Opposition

The main opponents of the advances of the gay rights movement in the U.S. have generally been conservatives. Religion is the most cited reason for opposing gay rights. Regionally, opposition to the gay rights movement has been strongest in the Southern and rural states.

As the movement for same-sex marriage has developed, many national and/or international organizations have opposed that movement. Those organizations include the American Family Association,the Christian Coalition, Family Research Council, Focus on the Familymarker, the Moral Majority, NARTH, the national Republican Party, the Roman Catholic Church, the The Church of Jesus Christ of Latter-day Saints ,the Southern Baptist Convention, Alliance for Marriage, Alliance Defense Fund, Liberty Counsel, and the National Organization for Marriage.

U.S. political parties

Among the two major parties, The Democratic Party has endorsed some gay rights legislation in its national party platform since the 1980s. The Republican Party has close ties to the Christian right and thus tends to oppose gay rights legislation, as does its national party platform. However, there are some variations among individual politicians, i.e., a Democrat in a more rural district is less likely to support gay rights, while a Republican in a more urban district may be more likely to support gay rights. For example, former senator Barry Goldwater, a conservative Republican, had expressed strong support for gay rights; he said gays should be allowed in the military, etc. Similarly, Rudy Giuliani, also a noted Republican, does support civil unions and other forms of gay rights. On the other hand, President Barack Obama, a Democrat, supports civil unions while opposing same-sex marriage.

On November 15, 1989, Democratic Massachusetts Governor Dukakis signed the Gay Rights Bill into law. Massachusetts became the second state, after Wisconsin, to pass such a bill.

Today, active minor political parties have wide-ranging views on gay rights. The Libertarian Party has endorsed a libertarian perspectives on LGBT rights since it was created in 1971, and the Green Party also has endorsed gay rights since it was created in the 1980s. While many American socialist and communist political parties initially preferred to ignore the issue, most support gay rights causes. The Socialist Party USA was the first party to nominate an openly gay man, David McReynolds, as its Presidential candidate in 1980. The Constitution Party strongly opposes gay rights and is tied to Christian Reconstructionism.

See also



Bibliography



References

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