July 4, 2008
Posted at 12:49 pm (Pacific Time)
I’m not going to put a lesbian in a position like that….
If you want to call me a bigot, fine.”
—Jesse Helms, in response to President Clinton’s 1993 nomination of Roberta Achtenberg as an assistant secretary at the Department of Housing and Urban Development.
Future students of 20th-century US history may puzzle over a section of the 1990 Hate Crimes Statistics Act. After mandating the federal government’s annual collection of data about “crimes that manifest evidence of prejudice based on race, religion, sexual orientation, or ethnicity,” the Act includes the following passage:
“SEC. 2.
(a) Congress finds that:
- the American family life is the foundation of American Society,
- Federal policy should encourage the well-being, financial security, and health of the American family,
- schools should not de-emphasize the critical value of American family life.
(b) Nothing in this Act shall be construed, nor shall any funds appropriated to carry out the purpose of the Act be used, to promote or encourage homosexuality”
This section of the Act is the legacy of Jesse Helms, who died today at the age of 86.
When the Hate Crimes Statistics Act was being considered by the Senate, Helms played a leading role in efforts to block it because it included antigay violence among the crimes to be monitored by law enforcement personnel. Aware of the bill’s popularity and having failed to remove sexual orientation from it, Helms attempted to thwart its passage by introducing an amendment that its supporters would find unacceptable but politically difficult to vote down.
The Helms amendment would have added the following language to the bill:
“It is the sense of the Senate that:
- the homosexual movement threatens the strength and survival of the American family as the basic unit of society;
- State sodomy laws should be enforced because they are in the best interest of public health;
- the Federal Government should not provide discrimination protections on the basis of sexual orientation; and
- school curriculums should not condone homosexuality as an acceptable lifestyle in American society.”
Such tactics were typical of Helms, who regularly used his parliamentary skills to get his own way in the Senate. On this occasion, however, he was outmaneuvered by Senators Paul Simon (D-IL) and Orrin Hatch (R-UT), who proposed alternative language that was less antigay.
The Simon-Hatch amendment was approved before Helms’ amendment was considered, thus providing political cover for senators. By supporting the Simon-Hatch language, they could safely vote against Helms’ amendment without being labeled pro-gay and anti-family.
And that’s why the Hate Crimes Statistics Act includes statements about “the American family” and denials that it was intended to “promote or encourage homosexuality.”
Helms’ failure at preventing passage of the Hate Crimes Statistics Act was unusual. His mastery of Senate procedure, coupled with lawmakers’ fear of appearing pro-gay, frequently allowed him to succeed in enacting his anti-gay agenda.
When the US was first confronting the AIDS epidemic in the 1980s, for example, Helms was instrumental in preventing the government from funding effective prevention programs among gay and bisexual men. The Senate twice endorsed his amendments prohibiting federal funds for AIDS education materials that “promote or encourage, directly or indirectly, homosexual activities.” By constricting the scope of risk-reduction education, Helms’ actions were widely believed to have contributed to the epidemic’s rapid spread.
Throughout his 30-year tenure in the US Senate, Helms was consistently associated with antigay stands. Given this fact, as well as his longstanding opposition to racial equality and the race-baiting tactics he used in election campaigns throughout his career, it is a fairly easy matter to accept his invitation to label him a bigot.
Personal bigotry aside, however, Helms’ legacy includes the many institutional manifestations of heterosexism that he was able to implement during his years in the Senate. Through the laws he sponsored and those he helped to defeat, he created real hardships for sexual minorities while also fostering sexual prejudice in American society. And his efforts probably contributed to the spread of HIV in the United States and the infection and deaths of many gay and bisexual men.
On this Independence Day and the occasion of Jesse Helms’ death, it is fitting to note how personal bigotry combined with political power can enable one politician to do so much harm to so many people.
And, recalling the general unwillingness of elected leaders to stand up to Jesse Helms’ antigay campaigns over the years, it is appropriate to reflect upon the words attributed to Edmund Burke: “The only thing necessary for the triumph of evil is for good men to do nothing.”
Copyright © 2008 by Gregory M. Herek. All rights reserved.
Permalink ·
June 26, 2008
Posted at 12:01 am (Pacific Time)
On June 26, 2003, the US Supreme Court issued its opinion in the Lawrence v. Texas case, ruling that state laws restricting adults’ rights to engage in private, consenting sexual behavior are unconstitutional.
Today, on the fifth anniversary of that historic decision, it seems appropriate to recall the events leading up to it and to consider what has happened since.
Consistent with this blog’s focus, I’ll emphasize the social science research data relevant to the case as presented to the Court in an amicus brief filed by the American Psychological Association (APA) and other professional organizations. I had the privilege of helping to write the APA’s briefs for Lawrence and the other cases mentioned below, all of which sought to inform the Court about current scientific knowledge related to homosexuality and sexual orientation.
Bowers v. Hardwick
Before discussing Lawrence, it’s important to recall the Court’s decision 17 years earlier in Bowers v. Hardwick.
Michael Hardwick was arrested in his Atlanta home after a police officer (who had been admitted to the home by a houseguest) peered through Hardwick’s partially open bedroom door and saw him engaging in oral sex with a male companion. Georgia had a sodomy law that, like the laws in many other states at the time, criminalized oral and anal sex between same-sex and different-sex partners alike.
With assistance from the American Civil Liberties Union, Hardwick brought a suit against the state Attorney General, Michael Bowers, challenging the law’s constitutionality. The case reached the US Supreme Court in its 1985–1986 term, and the APA filed an amicus brief jointly with the American Public Health Association.
That brief detailed the current state of scientific thinking and empirical research about homosexuality, explaining that the sexual conduct made illegal by the Georgia statute was common in both heterosexual and homosexual relationships, and was neither pathological nor harmful to the individual. Rather, the brief argued, such behaviors play a key role in maintaining intimate relationships, which in turn are important for the psychological well-being of heterosexual and homosexual individuals alike. The brief also explained that homosexuality is not a psychological disorder and it rebutted arguments by the Georgia Attorney General that the statute was an effective deterrent to the spread of AIDS.
By a 5–4 majority, the Court upheld the Georgia statute, declaring that states can legally regulate the private sexual behavior of consenting adults. This outcome was made all the more disappointing by later revelations that Justice Powell had initially sided with the justices who wanted to overturn the statute but then changed his vote. Justice Powell commented that he had never personally known any gay people. Ironically, several of his law clerks over the years had been gay but, out of concern for their careers, none had disclosed that fact to Justice Powell.
Three aspects of the majority opinion by Justice White and the concurring opinion by Chief Justice Burger are especially noteworthy.
- First, the opinions framed the legal question very narrowly and addressed only homosexual conduct even though the Georgia statute made both heterosexual and homosexual sodomy illegal. As Justice White put it, “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time” (p. 190).
- Second, both opinions found justification for their legal reasoning in religious and moral traditions. Justice White wrote that proscriptions against homosexual conduct “have ancient roots” (p. 194). Chief Justice Burger asserted that “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching” (p. 197).
- Third, the opinions constructed same-sex sexuality as something very different from heterosexuality, declaring that it has no relationship to families. Justice White wrote, “No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated, either by the Court of Appeals or by respondent” (p. 191). Elaborating further on this theme, he equated homosexual behavior with incest and heterosexual adultery, predicting that if the court were to decide that the Constitution protects the right to “voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home” (p. 194).
The Bowers decision was a great blow to proponents of equality for sexual minorities. However, an opportunity to challenge it came surprisingly soon.
Lawrence v. Texas
In 1998, John Lawrence and Tyron Garner were arrested in Texas for having consensual sex in Lawrence’s bedroom. The Texas sodomy law was similar to Georgia’s in that it criminalized oral and anal sex. Unlike the Georgia statute, however, the Texas law applied only to conduct between people of the same sex. In a lengthy series of appeals, the lower courts refused to overturn the law, citing Bowers v. Hardwick as precedent. Lawrence and Garner finally appealed to the US Supreme Court, which heard the case in the spring of 2003.
For several reasons, legal experts believed it might be possible to overturn Bowers v. Hardwick at this time. Many states had eliminated their sodomy laws, either through the legislative process or because courts had found them to be in violation of the state constitution. Gay people had become much more openly integrated into American life, and public opinion surveys revealed widespread opposition to antigay discrimination. The membership of the Supreme Court had also changed since 1986, and the Court’s 1996 Romer v. Evans ruling suggested it was more receptive to gay issues than in the past. In addition, many legal scholars regarded the Bowers v. Hardwick opinion as not well reasoned and considered it an embarrassment to the Court.
The APA — joined by the American Psychiatric Association and the National Association of Social Workers — filed an amicus brief, one of more than two dozen such briefs submitted in the Lawrence case. As in Bowers v. Hardwick, the APA brief summarized the current state of scientific knowledge relevant to the case, citing an extensive list of empirical studies and literature reviews in support of its conclusions.
Although some aspects of the Lawrence brief were very similar to the earlier Bowers brief, a much larger body of scientific research on sexual orientation was available than had been the case 17 years earlier. In addition, consistent with the Texas statute, the Lawrence brief focused on research about homosexuality. It stressed three major conclusions from behavioral and social science research findings:
- Homosexuality is a normal form of human sexuality. In connection with this point, the brief explained why and how sexual orientation is important to the individual; how sexual orientation develops, and the fact that most people do not perceive their sexual orientation to be a choice; and the mental health professions’ recognition that homosexuality is not a mental disorder.
- Trying to legally suppress sexual intimacy among same-sex partners deprives gay men and lesbians of the opportunity to participate in fundamental aspects of human experience. In this regard, the brief discussed the importance to gay men and lesbians of sexual intimacy and committed relationships; the centrality of the specific behaviors proscribed by the Texas statute to sexual intimacy and, therefore, to the intimate relationships that are at the core of lesbian and gay families; the similarities between same-sex and heterosexual intimate relationships; and the ability of gay men and lesbians to be good parents.
- Sodomy statutes — such as the Texas law — reinforce prejudice, discrimination, and violence against gay men and lesbians. Related to this point, the brief presented research findings on the discrimination, prejudice, and violence routinely encountered by gay people, and discussed how antisodomy statutes reinforce and help to perpetuate those enactments of sexual stigma.
Five years ago today, the Court declared the Texas law unconstitutional by a 6–3 majority, reversing Bowers v. Hardwick.
Justice Kennedy’s majority opinion was sweeping in its language and its recognition of the basic humanity of gay people. This is evident in his criticism of how the 1986 Court majority had approached Bowers v. Hardwick:
To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse…. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice (p. 567).
Justice Kennedy also noted that the continuance of Bowers as precedent “demeans the lives of homosexual persons” (p. 575), and asserted that “Bowers was not correct when it was decided, and it is not correct today” (p. 578). Near the end of the opinion, he wrote, “The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime” (p. 578).
These statements represented a dramatic break with the Bowers Court’s view of gay people.
What was the impact of the APAÂ briefs on the Court? In 1986, Justice Blackmun cited the APA brief in his impassioned dissent to Bowers v. Hardwick. Subsequently, in overturning their sodomy laws, some state courts relied on information from the APA amicus briefs submitted to them. The 2003 brief wasn’t explicitly cited in the written opinions for the Lawrence case, although some of Justice Kennedy’s recurring themes — his recognition of the humanity of gay men and lesbians, and the fact that sexuality is central to personal identity and intimate relationships — were repeatedly stressed in it.
Although we don’t know whether and to what extent the brief affected the Lawrence decision, what matters is that it was filed. As a joint effort by the largest mental health professional associations in the United States — whose memberships also include many of the country’s leading behavioral scientists — the brief illustrated just how far psychology and psychiatry have come in their understanding of human sexuality and their renunciation of sexual stigma.
The Marriage Equality Cases
The ink had barely dried on Justice Kennedy’s decision when questions began to be raised about its impact on marriage laws. Indeed, the justices directly addressed this question in their opinions, with Justice Scalia’s dissent interpreting the majority opinion as leading inevitably to marriage equality (an outcome not to his liking), and Justice Kennedy denying that such a conclusion was in any way inevitable. Justice O’Connor, who wrote a separate concurring opinion, made a point of separating the Lawrence decision from the marriage issue.
Less than six months after the Lawrence decision, the Massachusetts Supreme Judicial Court cited it in their ruling that prohibiting same-sex couples from marrying violated the state constitution. A few months later, Mayor Gavin Newsom directed the San Francisco County Assessor to issue marriage licenses to same-sex couples, and officials in a few other jurisdictions did likewise. Thus began a period of intense legal, political, and cultural focus on the issue of marriage equality.
In the past 4 years, several state courts have considered challenges to their marriage laws. The APA and other professional groups filed amicus briefs in those cases which summarized the social science research related to three major lines of argument:
- In psychological terms, intimate same-sex relationships are not fundamentally different from different-sex relationships.
- Gay and lesbian couples are currently raising children, and are just as capable as heterosexual couples in this regard.
- Marriage confers a variety of tangible and intangible benefits that have important effects on psychological and physical health; because they cannot marry, same-sex couples are currently denied these benefits.
I’ve discussed the social science data supporting these arguments in previous posts to this blog.
To date, most of those laws have been upheld by state courts, although the New Jersey Supreme Court ruled that same-sex couples must be granted the same rights and responsibilities as different-sex married couples.
The important exception, of course, is California, whose Supreme Court ruled on May 15 that it is unconstitutional to deny marriage rights to Californians simply because they are gay.
That decision — which also declared that sexual orientation will now be considered a “suspect classification” and that laws and policies discriminating on the basis of sexual orientation will be subjected to strict judicial scrutiny — repeatedly cited the Lawrence v. Texas opinion. It also cited the APA amicus brief, as detailed in a previous post.
In the months ahead, Californians will debate whether or not the Court’s ruling should be undone by a constitutional amendment that has qualified for the November ballot. Meanwhile, a decision about Connecticut’s marriage law is expected from that state’s Supreme Court at any time, and an appeal is pending for an Iowa lower court judge’s opinion that the state’s ban on marriage rights for same-sex couples is unconstitutional.
* Â Â Â Â Â Â * Â Â Â Â Â Â *Â Â Â Â Â Â Â Â Â *Â Â Â Â Â Â Â Â Â *
Back in 1975, soon after the American Psychiatric Association removed homosexuality from its official roster of mental illnesses, the American Psychological Association (APA) adopted a resolution that not only endorsed the psychiatrists’ action, but also recognized psychologists’ responsibility to undo the harm their profession had historically done to sexual minorities. That resolution committed psychologists to “to take the lead in removing the stigma of mental illness that has long been associated with homosexual orientations.”
The APA’s amicus briefs in the Bowers, Lawrence, and related cases were translations of that resolution into concrete action.
Because current debates about law and policy concerning sexual orientation inevitably raise questions about the nature of intimate relationships, parenting, family dynamics, and the personal impact of sexual stigma — phenomena that have been extensively studied by behavioral and social scientists — psychologists and other behavioral scientists have an ongoing role to play in communicating our knowledge to policy makers, jurists, and the public.
By doing so, we will continue to fulfill our longstanding commitment to take the lead in removing the stigma historically attached to homosexuality and same-sex intimate relationships.
* Â Â Â Â Â Â * Â Â Â Â Â Â *Â Â Â Â Â Â Â Â Â *Â Â Â Â Â Â Â Â Â *
This essay is adapted from sections of a longer article titled “Confronting Sexual Stigma and Prejudice: Theory and Practice,” which was published in 2007 in the Journal of Social Issues, vol. 63, pp. 905-925. The original article is copyright © 2007 by Gregory M. Herek. Sources and bibliographic references can be found in the published article.
Copyright © 2008 by Gregory M. Herek. All rights reserved.
Permalink ·
June 3, 2008
Posted at 3:36 pm (Pacific Time)
Charles Moskos, the military sociologist who helped to craft the “Don’t Ask, Don’t Tell” policy, died of cancer on May 31.
Moskos, a professor of sociology at Northwestern University from 1966 until his retirement in 2003, is credited with helping to design AmeriCorps and was an expert on racial integration in the military. His books include The Military: More Than Just a Job?, Black Leadership and Racial Integration the Army Way, and The Postmodern Military. He received numerous honors and awards, including membership in the American Academy of Arts and Sciences and the Distinguished Service Award, the US Army’s highest decoration for a civilian.
In recent years, however, he was best known for his role in helping to design the US military’s current policy on gay personnel.
According to an obituary posted on the Michael D. Palm Center website:
Until the end of his life, Moskos was always willing to engage his colleagues in discussions of ideas, and he held steadfastly to his beliefs even when they were unpopular. According to Palm Center Director Aaron Belkin, “Charlie consistently defended the ‘don’t ask, don’t tell’ policy, but was also concerned about the effect it was having on gay and lesbian troops.” Scholars and activists on all sides of this issue were impressed over the years with Moskos’s ability to defend and critique the policy. In 2000, for instance, he called the effects of the policy “insidious” because gays and lesbians have sometimes been cowed into tolerating harassment because they were fearful that reporting it could bring them unwanted scrutiny.
Belkin added that, “Moskos operated in a tradition of practical sociology that affected people’s lives in tangible ways. His passion, intellect and good nature will be sorely missed.”
Palm Center Senior Research Fellow Nathaniel Frank’s review of Moskos’ role in the DADT debate can be found on their website.
Discussions of the social science data relevant to the DADT policy can be found in my 2006 post, “Don’t Ask, Don’t Tell” Redux, and in the Beyond Homophobia archives.
Copyright © 2008 by Gregory M. Herek. All rights reserved.
Permalink ·
