Victory: The Triumphant Gay Revolution - Linda Hirshman (2012)
Chapter 9. Founding Fathers: Winning Modern Rights Before Fighting Ancient Battles
A few minutes after the Supreme Court issued the first explicit progay ruling in constitutional history, President Bill Clinton’s gay advisers Marsha Scott and Richard Socarides met in her office. Should the president comment on the decision? He should not, said some midlevel White House counsel who stopped by to advise. Romer v. Evans, the sweeping opinion extending to gay and lesbian Americans the guarantees of the equal protection clause, “doesn’t mean a thing.” “No?” Richard responded. “All it means is the beginning of the end for people like you.”
It was also the beginning of the triumphal last phase of the gay revolution. In 1996, at the very moment that gays overreached and lost in their efforts to join the illiberal institutions of marriage and the military, their decades of slow but steady work for membership in the liberal state began to bear fruit. And so, even for this most unconventional movement, the final push began in the most conventional way. Starting with Romer, they achieved the simple goods of the liberal state—participation in collective public self-governance, protection against the state for their private lives, and protection against their violent fellow citizens, to live, period.
I. Public Life
The Successful Gay Ground Game
Romer struck down an amendment to the Colorado constitution prohibiting any government action on behalf of gays, lesbians, or bisexuals. There were many battles left to fight after 1996 before Victory was clear. But Romer was surely the critical marker.
For the gay revolution, the Supreme Court was the last, rather than the first, resort. Unlike black Americans, no one had fought a civil war for gay folks. The constitutional amendments the court invoked in the race cases were unassailably written with black folks in mind, even though it had taken a while for them to be enforced. Nor could the gay revolutionaries claim that their treatment was the product of overbroad stereotypes that violate the broad command of equal protection like the feminists could. They were, in fact, different. They had to argue that their difference did not justify their treatment. In the early days of the movement, no one except the singularly inner-directed Frank Kameny thought of claiming that the Constitution entitled them to fair treatment, like the racial movement did in Brown. (He lost.) Small minority that they were, they were still going to have to start with the Sixties repertoire of direct actions and conventional mechanisms of electoral politics, rather than the faster route of constitutional litigation.
During the quarter century after Stonewall, the gay revolution focused most of its political efforts at the local level. By the time Stonewall erupted, cosmopolitan cities had long been the centers of gay community life. Long before there was a federal Civil Rights Act of 1964, the gay activists observed, cities with sizable racial minorities had enacted local antidiscrimination laws. Even before Stonewall, gay activists had already started targeting the local police departments and the sweeping disorderly conduct laws they enforced. After the police raid on Stonewall, the focus sharpened. The new activists quickly learned that their city governments, which supervised the police, were the institutions with the biggest impact on their day-to-day lives. Starting in 1971, in little liberal college towns like Madison, Wisconsin, or larger, gay-infused cities like San Francisco, gay activists worked to pass ordinances prohibiting discrimination against them. Asking not to be beaten by your own police or not to be fired from your job for your sex life were easy appeals to the security and privacy principles of the liberal state. And using local political power where your voters were concentrated was a clear invocation of the third principle, self-governance.
Denver, which would ultimately test the access of gay people to democratic self-governance, is a perfect example of the process. Within a year of Stonewall, Denver had a gay-liberation front. When the Denver police parked a bus decorated with a “Johnny Cash Special” sign near the gay cruising area and assigned an undercover agent to entice men on so other cops could arrest them until the bus was full, the new coalition called a press conference and a political movement was born.
Activists succeeded in getting the Denver City Council to repeal its lewd-loitering and cross-dressing ordinances in 1973. The liberal city council in the university town of Boulder about thirty miles from Denver passed an ordinance barring sexual-orientation discrimination in employment in 1974.
But Boulder residents made such a ruckus about their newfound inclusiveness that, immediately after they passed it, the legislators submitted their own enactment to a referendum. The people of Boulder voted to repeal the antidiscrimination law, recalled one of the two supporters eligible for recall, and then denied the mayor reelection. In 1977 pop singer and Christian activist Anita Bryant started a religiously driven movement, Save Our Children, to use the referendum process to undo the antidiscrimination ordinance that had passed in her home area, Dade County, Florida. Buoyed by the contemporaneous rise of the religious right, Bryant’s success spawned similar efforts in all the cities where gays had won rights: St. Paul, Minnesota; Eugene, Oregon; and Wichita, Kansas.
With a handful of exceptions, Bryant’s strategy blocked state and local progress for gays and lesbians for almost a decade. But for all those backlash years, the gay activists just kept playing local politics, looking for an opening. San Francisco gays organized a Democratic club and registered more voters. After annual defeats in the legislature, in 1975, Pennsylvania activists lobbied liberal governor Milton Shapp to issue an executive order protecting gay state employees. In 1982, a concerted campaign led by one extremely strategic out gay state legislator and heavily invoking Wisconsin’s long progressive history finally produced the first statewide gay antidiscrimination law.
The slow but steady local success in Colorado eventually provoked the effort that was the subject of Evans v. Romer (as the case was called when it started out in Colorado). In 1975, the coalition that organized the 1973 Denver City Council action, with the lesbian group from NOW, came close but failed to get a statewide gay civil rights bill. Having failed politically both in Boulder and statewide, Gerald Gerash, out, gay, and an all-around-left activist lawyer in Denver, figured out that community had to precede politics. A small but energetic Denver group reorganized themselves into a Unity coalition to build a gay and lesbian center, called just the Center. It would be a place, first Center director Phil Nash remembers, where people could just “be,” especially if the bar scene was not their idea of a good time.
There weren’t a lot of big gay donors to build a community center in Denver, Colorado, in 1975. But there were the queens. Or more to the point, the cross-dressing and drag-embracing empresses, duchesses, and other nobles of the International Imperial Court System of the United States and its local chapter, the Imperial Court of the Rocky Mountain Empire. The Imperial Court System is older than Stonewall and about the size of the Human Rights Campaign. Started in 1965 in America by the redoubtable José Sarria, opera-singing icon of San Francisco’s Black Cat Bar, just for fun (“Why be a queen when you can be an Empress?”), the association soon generated chapters all over the world. Although the Empire’s most public manifestation is its yearly “Night of a Thousand Gowns” ball in New York each spring, the real mission of the Imperial Court System is to raise boatloads of money for charity, gay and nongay (the Empire strikes back at breast cancer and domestic violence as well as supporting gay causes). In the early Imperial days, some charities wouldn’t even accept their money. But they just kept partying and fund-raising. In 1975, the two-year-old Rocky Mountain Empire was the largest donor to the would-be gay and lesbian center.
Once there was community, politics followed. With little fanfare, in 1978 tourism-sensitive Aspen passed an antidiscrimination law and held onto it. The activists who organized and ran the Center formed the core of the local movement. They met. They planned programs. They squabbled. Change came, as it often does, from the local elites. The newly organized gay community made an alliance with the first Hispanic candidate for mayor of Denver, Federico Peña, who was running against the conservative, antigay incumbent in 1983. Right before Peña’s election, Outfront, the main gay newspaper, ran a ringing endorsement. “Finally,” the Center’s Nash says, “someone in city hall returned my phone calls.”
Colorado politics on the whole began to change. As in the rest of the country, AIDS activism brought some people out and the community saw gay people start to die and take care of each other. One day in 1987, a bunch of kids too young to have been burned in 1974 started to agitate for another try at a civil rights ordinance in Boulder. They put an initiative prohibiting sexual-orientation discrimination on the ballot. The wife of a philosophy professor from the university ran the group, and some lesbians and feminists raised a little money. After thirteen years of keeping gays out of civil rights protection, Boulder’s new law applied not just to employment, but also to housing and public accommodations, and it passed by the same direct-democracy process that had reversed so much progay legislation in the past.
In 1990, Denver policewoman Angela Romero decided she’d had enough abuse from her department. Romero had wanted to be a policewoman since she was a child. After a long and distinguished career, she was caught buying a book at a lesbian bookstore. She was transferred from her specialty—teaching safety in the public schools—and assigned to domestic-violence cases. Duty call became a nightmare of harassment and lesbian baiting. After four years of this, she began lobbying for Denver to pass a nondiscrimination ordinance. Denver gays and lesbians had already ramped up their activism for the 1988 election year. After the election, they held a meeting and decided an ordinance would be a good project. So lesbian feminist organizer Tea Schook and a bunch of the activists from the Center effort started drafting. Inspired in part by Boulder, in 1991, the city council of Colorado’s largest city enacted its ordinance and defended it successfully against the predictable rollback initiative. That same year, gay activists even made the mistake of poking a stick into the eye of the religious right by proposing a civil rights bill in Colorado Springs, home to the multimillion-dollar Christian Right powerhouse Focus on the Family.
The Colorado Springs ordinance failed, but one of the activists who worked against it was aroused enough to start a statewide opposition, Colorado for Family Values. A CFV spokesman told Denver newsweekly Westword: “And we said no further. This is not going any further. . . . They were just going to go city by city and county by county. And there was only one way to stop it, and that was to do something statewide.” The new coalition was determined to repeal the existing civil rights laws and put an end to the local strategy. Denver: meet Colorado.
Colorado was the perfect place to test the statewide antigay resistance. Access to the initiative process in Colorado is easy and wide open, and it takes only a simple majority to amend the state constitution. Colorado for Family Values proposed to amend the state constitution to prohibit any “PROTECTED STATUS BASED ON HOMOSEXUAL, LESBIAN, OR BISEXUAL ORIENTATION.” Under the new provision, “Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination.” The proposed constitutional amendment not only reversed all existing protections of any substance, but, under its terms, any gay political movement would be barred from ever trying to come back to any state legislature or local government to get any new protections passed.
The Game Changer
It was a Hail Mary pass. Even in the heyday of the Anita Bryant backlash, the antigay movement had never succeeded in enacting measures to make life radically worse for gays and lesbians. The first time they tried—in 1978, with the Briggs initiative in California to bar gays and lesbians from teaching school—they met their first defeat. Amendment 2 tried to make things as much worse as possible. After two decades of slow but steady progress, gays were to be, as the Supreme Court would later opine, “strangers to the law” in Colorado.
Young Colorado gay activist Pat Steadman was anything but a stranger to the law in 1991 when the Amendment 2 initiative appeared. A slender, handsome young man with a mop of floppy hair, he had just graduated from law school and registered for the Colorado bar exam. Steadman rushed off to the gathering activists had hastily convened in a conference center outside Denver to respond to the new attack. There was no real statewide gay organization, so the group from the Denver ordinance fight, now named the Equal Protection Coalition, quickly took over the movement, rented space in the Center building, hired staff, and started fighting over how to fight the amendment.
The Amendment 2 campaign was a classic of morality politics—a mass electoral action based on intuitive aversion. University of Colorado coach Bill McCartney, founder of the Christian men’s group Promise Keepers, called a press conference at the university to announce his support for Amendment 2. “Homosexuality was an abomination of almighty God,” the coach announced. The well-organized legions of the Christian Right turned out.
In the campaign waged on behalf of the amendment, proponents taught voters that gays and lesbians were actually after “special rights.” “Special rights” has been code talk for civil rights since the racial movements of the Sixties. Marginalized groups using the law to get what the society already offered to the majority—service at lunch counters, for example—was framed as asking for “special” treatment. The special rights talk got louder with the appearance of the remedy of affirmative action. Although none of the gay rights laws in Colorado mentioned affirmative action, the proponents of Amendment 2 suggested that straight people, already “bumped” by blacks and women, would have to now step back again, while homosexuals took their stuff away. Just before the election, Amendment 2 proponents had distributed an eight-page broadside to homes all over Colorado. The last page displays a cartoon of an employer at a day-care center turning a nongay applicant away because the center had not yet met its quota for gay day-care workers.
The Equal Protection Coalition never dreamed Amendment 2, which had never led in the polling, would pass. But Tea Schook started having a very bad feeling when she observed morality politics at work in a focus group of women who were supposed to be sympathetic: “That was supposed to be our voter. We watched how one very poisonous woman turned a bunch of people who really didn’t have an opinion into some very rabid, queer-hating people. We didn’t know how much of a shoo-in hate really was.” Lawyer Mary Celeste was in bed with her partner, Beverly, watching a report on TV about how Amendment 2 would never pass, when Beverly sat up and said, “And if it does? What is our fallback position here?” The next day Mary and Beverly and some other gay lawyers started planning litigation strategy. Their “dream team” was to be led by Jean Dubofsky, the retired first woman justice of the Colorado Supreme Court, then teaching at the University of Colorado Law School. Dubofsky, the brilliant Harvard Law School graduate with a pixie haircut, had cut a swath through liberal legal circles in Colorado from the day she arrived fresh out of Walter Mondale’s Washington Senate office. When Pat Steadman, then a green law student, heard Dubofsky speak at the law school, he knew her politics were a perfect fit with the movement. Even though she was not gay.
Amendment 2 passed easily. According to the highest law of their state, Colorado’s gay, lesbian, and transgender citizens were cast out of politics.
First Thing Let’s Do Is Kiss All the Lawyers
When politics fails to protect fundamental democratic principles—as it did in Amendment 2—the United States Constitution, as enforced by the courts, is the last resort. Even a state constitution amended by a six-point majority has to meet the requirements of the US Constitution.
So the day after the passage of Amendment 2, Steadman called to remind Jean Dubofsky that, in the palmy days of six-point polling leads, she had promised to represent them. Symbolized by lead plaintiff Richard Evans, from the governor’s own staff, the gay side’s legal team assembled an all-star roster of plaintiffs from cities with antidiscrimination ordinances as well as from a bunch of the cities and local governments targeted. The case so clearly pitted the liberal New West cities like Denver against the narrowly conservative state electorate it might as well have been called Denver v. Colorado as Evans v. Romer. Amendment 2, the case claimed, violated the Fourteenth Amendment to the US Constitution. It deprived the plaintiffs of the equal protection of the laws.
In no time, Dubofsky was swarmed by the national gay legal establishment: Suzanne Goldberg from Lambda in New York and a team from the ACLU Gay and Lesbian Project, including the experienced and strategic éminence grise from San Francisco, Matt Coles.
The competition for control of the Romer case reflects how the legal profession’s role in the gay revolution had grown since Marilyn Haft and the lawyers at the ACLU started lobbying the American Bar Association (ABA) for gays in the early seventies. With little fanfare, three years after idealistic feminist lawyers from San Francisco founded Equal Rights Advocates in 1974, Donna Hitchens, who ended her career as a California state judge, and Roberta Achtenberg, who is a member of the United States Civil Rights Commission, nested a Lesbian Rights Project there. In 1988, the project spun off as the National Center for Lesbian Rights (NCLR). The NCLR is legendary in the movement for its unremitting battle for the rights of lesbians and the families they created or were trying to hang onto after divorce. One custody fight at a time, using the established doctrines of family law, organizations like the NCLR began to weave a web of legal legitimacy around the idea of the lesbian, or gay, family; in 1996 Newsweek magazine published an article, “The Future of Gay America,” predicting a “Gayby Boom.”
By 1989, the ABA, a reliable barometer of the pressure within the legal profession, had endorsed a gay antidiscrimination bill. When the military issue heated up, the law schools started banning the military from recruiting lawyers, because the military discriminated against homosexuals, just as, years before, they had forbidden legal recruiters who said they wouldn’t have women in their law firms. In 1992, the ABA passed a resolution supporting the law-school ban on military recruiting.
Once the gay population made the crucial transition to a civil rights movement in the eyes of a critical mass of the legal profession, they benefited from the profession’s nostalgia for the heroic role it played during the racial civil rights movement. As the seventies and eighties passed, both the racial movement and the gender movement leveled off, as social movements do, or retreated in the face of the backlash, or both. But the gay revolution was coming on strong. For young lawyers aspiring to be the next Thurgood Marshall, the gay revolution was the civil rights movement of their generation. In Bowers v. Hardwick in 1986, men who had had recourse to only two or three suspiciously “connected” lawyers from the hallways outside sex-crimes court were represented by one of the premier constitutional scholars in America, Harvard law professor Laurence Tribe. Where once graduates from fancy law schools, such as Justice Lewis Powell’s clerk Cabell Chinnis, were hiding in the closet in order to feed their career ambitions, now, ambitious out A-gay lawyers like Harvard’s Suzanne Goldberg were elbowing one another aside for a chance to work for places like Lambda and the ACLU.
The lawyers and the lawsuits came in perfect sync. Litigation like Romer, Matt Coles says, does not just happen. It is “engineered” with exquisite attention to every nuance of who the judges were and what they would attend to. When Dubofsky would not hand her case over to the movement pros, the nationals started coaching her, while simultaneously working it through briefs by friends of the court.
Changing the Rules of the Game
Although a constitutional challenge was the only option left, it looked bleak. The Supreme Court, which would ultimately have the last word, had been implacably hostile to the gay movement almost without exception since the movement’s legal efforts started in 1950. In 1986, the court had ruled in Bowers v. Hardwick that Georgia could make gay sex a criminal offense. By 1992, the federal courts, including the Supreme Court, had been shaped by twelve years of conservative appointments from Republican administrations. For years, the consensus in the gay legal community was that after the devastating defeat in Bowers, anything that might trigger a Supreme Court decision should be avoided. Yet everyone—Jean Dubofsky, the Lambda folks, lawyers from the ACLU—agreed that Amendment 2 was too drastic to ignore. They decided to avoid the hostile federal courts for a while by starting the challenge in the state courts of Colorado. (It is a little-known fact that state courts can enforce the federal Constitution, but at the end of the day their decisions on federal law, too, are subject to review by the United States Supreme Court, if the Supreme Court cares to take them up.)
Nonetheless, if ever there was a case to test whether the United States Constitution applied to gay Americans, Romer was it. Short of getting Amendment 2 repealed, gays and lesbians were cut off from any prospect of protecting themselves through law. Amendment 2, as Harvard law school’s Larry Tribe would later describe it, made them “ineligible” for the protection of the laws. Under Amendment 2 gays would have lived in a kind of state of nature in their own society, all civil rights protections they had achieved repealed and new protections, no matter how harsh their treatment, forbidden.
The Fourteenth Amendment forbids the states to deny to any person “due process of law or the equal protection of the laws.” Although the words look fairly straightforward, the contest over their meaning is fierce. For sixty years before the plaintiffs filed their suit in Colorado, the Supreme Court had been interpreting the prohibitions of the Fourteenth Amendment in two ways. One, the states are forbidden to deprive people of fundamental civil rights, like free speech or the right to vote. (Thus the lone gay victory in the ONE magazine case all those years before.) And two, the states may not discriminate against a discrete and insular minority with a history of bad treatment, like African Americans. Such classifications are, in Fourteenth Amendment talk, “suspect.” If a state does either of these things, it must show a very good reason why.
The suspect-classification argument did not look good for plaintiffs. After the Supreme Court upheld Georgia’s right to toss gays in jail for having sex just a decade earlier in Bowers, nobody could envision the court assigning gays to a suspect classification like African Americans or even a sort of suspect classification like the court had extended to women. If a group wasn’t a suspect classification, the government could single it out for pretty much anything, as long as the government could make some rational argument for doing it. No one wanted to depend on that winning.
The lawyers elected to focus on the first argument, the way the law deprived gays and lesbians of the fundamental right to participate in the political process, rather than the second argument of suspect classification. They thought that maybe, although gay sex might not be fundamental, gays acting politically would be. After all, the Constitution explicitly protects the right to vote, and politics is the core of America’s “democratic principles.” Here, the overreaching sweep of Amendment 2 did the heavy lifting. After Amendment 2, there was absolutely nothing gays and lesbians could do politically in Colorado. No city could protect them against prejudice, no judge could find they had been inappropriately harmed; the Colorado legislature’s hands were tied. Unless they got a majority of the people of Colorado to repeal Amendment 2 to their state constitution in a rerun of the election they had just lost, they were helpless.
This strategy was vulnerable, because the Supreme Court had been letting states get away with making a lot of unpopular causes politically harder by amending their state constitutions to tie the hands of their state and local legislatures. So a state constitutional amendment requiring that public housing could only be established by a supermajority of the legislature, for instance, got the nod, even though it clearly nullified the political efforts of people who needed public housing. In constitutional terms, the argument started to look like a debate over how many rights had to be walled off by the state constitution before the general right to vote was implicated.
The legal team also began to sniff around a third argument. Even if the political process could do pretty much anything to any unprotected group, it could not legislate against a group of people on the staple of morality politics—intuitive distaste. There was actually a Supreme Court precedent for disallowing such open hatred. In 1971, at the height of the Sixties social movement, Congress amended the Food Stamp Act to disqualify any household whose members were not “related.” The Supreme Court took a look at the legislative history to see why Congress had done that and found septuagenarian Florida senator Spessard Holland explaining that the provision was designed to keep food stamps out of the hands of “hippies” and “hippie communes.” The 1973 Supreme Court struck it down: “For if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”
Regardless of what the lower courts found, everything the plaintiffs did in Romer was designed to build a record to appeal to the United States Supreme Court on one or more of those theories: the law infringed fundamental civil rights, it did not even meet the low standard of basic rationality much less show a damn good reason, and it was enacted because gay people made the voters puke.
The Home-Court Advantage
In 1993, Jeffrey Bayless, a judge with a reputation as a moderate, enjoined the implementation of Amendment 2 while the case went to trial and the Colorado Supreme Court agreed.
For a social movement, a trial is a chance to replay the drama of the political campaign in a forum with very different ground rules. Once a question gets into the legal system, the answer is constituted by values of the legal system. By constitutional fiat, in America the government may not overtly legislate a religious belief. Law can stop people from harming others and to some extent require them to help others. The Constitution requires, at minimum, that any law must bear a rational relationship to a legitimate state interest, which does not include saving its citizens’ souls.
In that system, a social position expressed by a moral bumper sticker—“homosexuality is the end of the American Republic”—is the beginning of the inquiry, not the end. The relationship between the law and the legitimate interest must be proved according to the system’s rules for proof. A witness on the stand—or even a person “testifying” through what he or she wrote—must have personal knowledge of the matter or be a scientific, technical, or other specialized expert. The professional habits of thinking in terms of direct evidence and material harm enable the lawyers to see through the easy appeal, so powerful in other realms, to the “natural” or the traditional. Not for the courtroom the lay expertise of unexamined intuitions characteristic of morality politics. The change of frames, in turn, changes the political lesson people learn. They see authoritative figures issuing judgments that people must obey based on secular, rational processes. Not only did Evans v. Romer go to trial, it was televised over Court TV to people all over the state.
The Amendment 2 campaign looked very different in a courtroom. During the campaign the public had been introduced to outsider citizens trying to make a grab for extra privileges. Instead of reading about some fictional greedy pedophiliac day-care worker, trial watchers met policewoman Angela Romero. They heard religiously driven junk science offered as expert testimony and debunked. The campaign literature, which is the equivalent of legislative history of a referendum, painted an indelible picture of the proponents’ desire to harm an unpopular minority. The trial court ruled that the proponents of Amendment 2 had failed to justify the measure, sending the case again to the Colorado Supreme Court.
The Colorado Supreme Court did not just reject the proponents’ arguments; it flayed them. The Colorado court had particularly destructive things to say about that perennial favorite, “special rights”: “Defendants offer no authority,” the court ruled, “to support the rather remarkable proposition that the government has a compelling interest in seeing that the state does not support the political objectives of a ‘special interest group.’ The state exists for the very purpose of implementing the political objectives of the governed [emphasis added] . . . virtually any law could be regarded as a benefit to a ‘special interest group.’ ” Civil rights laws in Colorado were no different from the laws passed to benefit the ski industry. In what passes for a dueling-level insult in legal circles, the Colorado court concluded, “No citation of authority is needed to make the point.” If Romer lifted the freeze on political activity, this language would be invaluable to any progay rights forces in the upcoming political battles left for, say, a statewide antidiscrimination law.
Friends in High Places
Jean Dubofsky and her team had been praying the Supreme Court would just let the Colorado decision lie. When, instead, the court exercised its discretion and agreed to review the case, a chill fell on their brief celebrations. The United States Supreme Court had held that gays could be jailed for having sex and allowed state constitutions to preempt all kinds of other political action. Where were five votes to overturn the Colorado constitution going to come from?
States, cities, churches, unions, and the NAACP all wanted to be friends of the court, but Supreme Court lawyers know that to flood the court with briefs is the best way to ensure that they pay no attention to your friends. Cue the cavalry: Harvard con-law capo di tutti capi professor Larry Tribe wrote a brief. He then handpicked the five most influential constitutional law scholars in the country to sign their support, deliberately including the representatives of a whole range of thinking about the court’s role in interpreting the Fourteenth Amendment. Philip Kurland, who had written the definitive critique of the court’s performance in the school-desegregation cases, signed the brief. John Hart Ely, the man who started the campaign to delegitimize the court’s abortion decision in Roe v. Wade, signed the brief. In essence, the Tribe brief gave the court permission to make new equal-protection doctrine, not just from liberals like Tribe but from all the people who had previously tried to rein it in.
Tribe’s amicus brief is now a legend in the rarefied circles where constitutional doctrine gets debated. Maybe only someone who edited the authoritative treatise on constitutional law for decades would have had the chutzpah to tell the Supreme Court that all its existing Fourteenth Amendment precedent meant nothing in this context. I know, Tribe told the court, that you have two avenues of analysis when you see Fourteenth Amendment cases—the suspect classification and the fundamental rights. Cast off those old, tired categories, because “never since the Fourteenth Amendment’s enactment has the Supreme Court confronted a law quite like this.”
Being in a class by itself, Amendment 2, according to Tribe, raised a problem the court must deal with “prior” to its familiar categories. The problem was whether “a state [may] set some persons apart by declaring that a personal characteristic that they share may not be made the basis for any protection . . . from any instance of discrimination, however invidious or unwarranted?” The answer, Tribe suggested, must be no. Indeed, he contended, to decree that some characteristic precludes a group from ever claiming protection against discrimination previously or in the future is “by definition a denial of the equal protection of the laws.”
Tribe, who had argued and lost Bowers, gave the court permission to preserve that harrowing decision. Even if you are still committed to letting stand the criminalization of gay sex, he implied, that is one discrete penalty that you can perhaps justify as rational. Still, even if the conduct that distinguishes the target group is criminal, you cannot let Colorado make outlaws of a whole segment of its population. Imagine if a conviction of, say, gambling, made all gamblers forever ineligible to receive medical care or protection from assault, he implored.
Finally, Tribe contributed to the Colorado Supreme Court’s process of normalizing civil rights. You wouldn’t allow a state to exclude a whole group of citizens from protection against robbery, he asserted. Why is cutting them out from protection against discrimination different?
In this heavily precedent-driven system of constitutional law, Tribe turned the plaintiffs’ failure to qualify for protection under existing precedents into an advantage. If the court can’t find a reason to strike it down within its existing precedents, he concluded, that’s not a weakness in plaintiffs’ case. It’s because no state had ever tried anything as flagrantly unconstitutional as this before.
It Is Not Within Our Constitutional Tradition to Enact Laws of This Sort
On October 10, 1995, Colorado solicitor general Tim Tymkovich stood up to present the argument for Amendment 2. No sooner had Tymkovich introduced himself to the court than the generally conservative justice Anthony Kennedy interrupted him: “Usually when we have an equal-protection question we measure the objective of the legislature against the class that is adopted, against the statutory classification,” Justice Kennedy began. “Here, the classification seems to be adopted for its own sake. I’ve never seen a case like this.”
The plaintiffs’ lawyers exchanged startled glances. They had assumed the support of the court’s four “liberals.” Now they had their fifth vote. Justice Kennedy had accepted Larry Tribe’s invitation to view Amendment 2 as outside the universe of modern equal-protection jurisprudence.
Justice Kennedy’s opinion for the majority of six, issued on May 26, 1996, did not just reject the effort to estrange gay Americans from their own democratic republic. It laid down an authoritative constitutional barrier protecting any movement, however unborn or unforeseeable, that would ever invoke America’s democratic principles. It was a high roll. Had the court gone the other way, Tribe says, the next step against homosexuals would have been something like Dred Scott, the notorious pre–Civil War decision that categorized slaves as not citizens of the United States, stripping them even of their standing to invoke the protections of the federal courts. In such a regime, no one’s rights are safe.
Justice Kennedy started the opinion with a citation of the holy writ of equal protection, Justice Harlan’s 1896 dissent denying the constitutionality of racial segregation, which was ultimately vindicated in Brown. “One century ago,” Justice Kennedy wrote, “the first Justice Harlan admonished this Court that the Constitution ‘neither knows nor tolerates classes among citizens.’ Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (dissenting opinion). Unheeded then,” Justice Kennedy continued ominously, “those words now are understood to state a commitment to the law’s neutrality where the rights of persons are at stake. The Equal Protection Clause enforces this principle and today requires us to hold invalid a provision of Colorado’s Constitution.”
Kennedy accepted Tribe’s invitation to treat the case as outside the standard categories of suspect classifications and fundamental rights. In an almost verbatim quotation from Tribe’s brief he concluded:
Respect for . . . [the law’s neutrality] explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.
No further analysis was required.
The opinion also adopted Tribe’s characterization of civil rights as no different from any other body of law. The court said, “We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.” After Romer, everyone gets a shot at “ordinary civic life in a free society”—both members of a powerful majority who don’t need civil rights protections and everyone else who may.
In passing, Kennedy also warned against excesses of moral rectitude in lawmaking. Amendment 2’s “sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.”
The Rules of War
Any Supreme Court opinion of this magnitude that is not unanimous is to some extent a dialogue between the majority and the dissent, both sides keeping an eye on history. Dissenting justice Antonin Scalia argued that conservative Colorado was legitimately trying to win a decisive battle against liberal, cosmopolitan values they hated. Colorado for Family Values, he opined, were engaged not in a “fit of pique,” but in a “Kulturkampf”—a peculiar choice of words, invoking nineteenth-century German Protestant chancellor Otto von Bismarck’s campaign that essentially cut the Catholic clergy out of politics and imprisoned the defiant.
Just in case anyone was tempted by the German model of minority relations, Justice Kennedy used Supreme Court code talk to remind his brethren of the bedrock American constitutional prohibition against selecting out a minority for legal death. “It is not,” Justice Kennedy concluded, “within our constitutional tradition to enact laws of this sort.”
Drinks All Around
The world did not change at once. Homosexual sodomy remained criminal in twenty-four states. Gay progressive campaign consultant Lisa Turner, working for the national Democratic Party as a state organizer at the time, found that there was literally “no presence” from the LGBT community in the state capitals, in Michigan, Vermont, Maine, Oregon, wherever she went. “Whether it was fund-raising, candidate selection, or having a legislative voice, you name it,” she says, she “saw every interest group—teachers, women, trial lawyers—at the table. But no gays.”
But it was a critical moment. Protected by the decision in Romer, the gay revolution could use the political process to gain access to ordinary “civic life.” In Colorado, a robust progressive alliance including gays and lesbians grew stronger every year, fueled by the annual battles with the religious right over some statewide initiative or other. The National Gay and Lesbian Task Force started a federation of state organizations as a place where local groups could exchange information and best practices. In 2000 the Equality Federation left the Task Force nest and became an independent entity, joining the activists from every state. Richard Socarides’s boss Bill Clinton became the first sitting president to address a formal dinner of the Human Rights Campaign.
President Bill Clinton leaving the White House for the first-ever speech to the Human Rights Campaign, November 1997. From the left: Richard Socarides; Bill Clinton; Maria Echeveste, deputy chief of staff; Ginny Apuzzo, assistant to the president; and highest-ranking gay appointee to that time, speechwriter June Shih. (Official White House photograph, Clinton Library)
The Transgender Law and Policy Institute was formed in 2000, followed quickly by the first state legal organization for transgender people, in San Francisco, and the second, the Sylvia Rivera Law Project, in New York.
In keeping with its mining tradition, Colorado struck it rich. Twenty-five years before Romer, a scared freshman at the University of Colorado had wandered into the student gay group, then called Boulder Gay Liberation. “Hi,” he said. Then he shook for ten minutes while the person manning the office tried to comfort him by talking about something like “queer theory.” Within a few months he was working at the group’s office. By the second semester he was talking to Abnormal Psych classes about what it was like to be gay. Although the people where he worked after he graduated knew he was gay, he wasn’t active because he was concentrating on his career. But when Amendment 2 came up, formerly scared University of Colorado freshman Tim Gill, now Forbes 400 founder of the computer graphics company Quark, was the single largest donor to the fight. When his side lost, he took 60 percent of his immense fortune, endowed the Gill Foundation, and started looking around for ideas about what to do.
“Sixty percent of people in Colorado,” Gill learned, “didn’t know anyone gay or lesbian. That meant they were forming opinions about LGBT people based on stereotypes rather than facts and personal experience.” His solution? To “structure a fund, the Gay and Lesbian Fund for Colorado (GLFC), like a corporate-giving program. We wanted to give to important causes in Colorado but we also wanted to make sure the LGBT community got credit for it.” Go to any cultural event or anything that’s being sponsored by anyone, Pat Steadman, now a state senator, says, “and the program prominently features the distinctive red, white, and blue Gay and Lesbian Fund for Colorado logo. And not just in the Denver-Boulder corridor; they fund events across the state—little theater companies, programs for children. They have very clear expectations that their branding and acknowledgment of his gift is a condition of the gift. It’s part of our culture, and that’s been going on for so many years here it doesn’t offend anybody.” Not only are Colorado gays not strangers to the law, they aren’t strangers at all.
Perhaps because Gill was first involved in the context of Amendment 2, his efforts have always focused heavily on the state level, which turned out to be where a lot of the action was after 1992. For the gay revolution, states were the new cities. In 2003, a Colorado state representative, Republican Shawn Mitchell, tried to pass a law that would forbid discussion of homosexuality in the classroom. “If Shawn’s bill had passed,” Gill says, “it would, for example, forbid me to speak at my own high school since I can’t tell my life story without mentioning that I’m gay.” A year later, Gill and his allies flipped the Colorado legislature from Republican to Democratic, and Gill founded Gill Action for the express purpose of politics and lobbying. Gill calls himself a “genetic Republican,” because that’s what his parents and grandparents were. But looking back on the 2004 Colorado election, Gill consultant Ted Trimpa describes a nonpartisan philosophy: “Take known antigay elected officials and target them specifically for their past antigay views, actions, and statements. . . . How we win is by creating an environment of fear and respect.” If the Republicans choose to take that role, they’re in the crosshairs. It’s nothing personal. “Heck,” Gill says, “One of Gill Action’s strategists is a former Karl Rove protégée.” With a newly Democratic legislature, in 2005 Colorado amended its law against bias-motivated violence to include sexual orientation and sexual identity and, two years later, passed a statewide antidiscrimination law, a second parent-adoption law, and a designated-beneficiaries law. Colorado politics would never again be a gay and lesbian no-fly zone.
For years, Jean Dubofsky says, she could not go out to dinner in Denver, where she lives, without champagne arriving at her table from some anonymous person in the restaurant.
II. Private Rights
Sodomy May Be Gay but It’s Not Funny
John Lawrence was not drinking champagne in Houston in 1998 when police came to his house and arrested him and another man, Tyron Garner, for sodomy. The weapons charge that had brought the police to Lawrence’s home turned out to be bogus (another of Garner’s lovers had called the cops for sport). But Lawrence and Garner spent the night in jail anyway. Gays and lesbians might have won the liberal right to participate in government in Romer, but they were still denied the equally important principle that some things are protected from the government. Homosexual sodomy was illegal in Texas and, as the Supreme Court had said all those years ago in Bowers v. Hardwick, that was okay with it. In fact, any other position was “facetious.”
Even after Romer, the gay legal establishment was not spoiling for a federal fight. Lambda Legal director Abby Rubenfeld remembers the day she found out about the defeat in Bowers. “That was one of the moments that made me want to give up my law license. I didn’t even want to stay at work.” The handful of lawyers at Lambda in 1986 were left to pick up the pieces, dealing with the angry, disaffected gay community. There were street riots in New York.
Anyway, they had found another way to win. Right after Bowers, a lowly trial court in Kentucky acquitted defendant Jeffrey Wasson of soliciting deviate sexual conduct. We don’t care what the US Supreme Court thinks is funny, the Kentucky judge said in effect, this is private, consensual conduct. Under the Kentucky constitution, it’s protected. The Supreme Court of Kentucky agreed. Slowly and patiently, for twelve long years after Bowers, the gay litigators’ roundtable gathered cases in the states where sodomy was still criminal and brought the number of such states down to little more than a dozen, including, of course, Texas.
When Lawrence’s case landed on their doorstep, however, Lambda decided it was time for another try at the feds. Lawrence had a lot to recommend it. Rightly or wrongly, the state of Texas convicted the two, and the courts of appeals affirmed, so the pattern of unequal justice across the states was graphically presented. Individual rights and equality were protected in thirty-six states but not in Texas. They petitioned the Supreme Court to review the Texas decision and boldly asked the Supreme Court to overrule its seventeen-year-old precedent in Bowers v. Hardwick. Lambda’s own out gay board member Paul Smith argued for Lawrence.
When Justice Kennedy took the bench on June 26, 2003, to announce the decision in Lawrence v. Texas, they learned they had succeeded beyond their wildest dreams.
Crying for Justice
The Supreme Court always decides all the cases that have been briefed and argued before the term is out. With Lawrence still hanging fire in the last week of the 2003 term, pressure began to build. The night before the last remaining day of the term, Lambda president Kevin Cathcart said to himself, Oh the hell with it, and got on the train to Washington. He got up early the morning of June 26 because he knew there would be a big line at the court building. One of the people waiting was Larry Tribe, who had argued another case that term and was waiting for that decision. As Tribe sat in the magisterial courtroom of the United States Supreme Court on the morning of June 26, 2003, and listened to Justice Anthony Kennedy read a summary of the opinion, he felt tears rolling down his cheeks.
The Supreme Court in Bowers, Justice Kennedy ruled, had been mistaken from the moment it opened its mouth. The gay claim for membership in the liberal state was not, as Justice Byron White suggested in Bowers, laughable. It was in fact indisputable.
Justice White stated the issue, Kennedy said, as the right to engage in homosexual sodomy: “To say that the issue in Bowers was simply the right to engage in certain sexual conduct,” Justice Kennedy scolded, “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. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek 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.”
Kennedy acknowledged that, as Chief Justice Warren Burger so passionately expressed, “The Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral.” The intensity and sincerity of the public’s moral convictions “do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. Our obligation is to define the liberty of all, not to mandate our own moral code.”
But Kennedy was not content to leave the gay revolution in the cold peace of the liberal state. It was not so clear their actions were always and everywhere immoral, either, Justice Kennedy continued:
Scholarship casts some doubt on the sweeping nature of the statement by Chief Justice Burger as it pertains to private homosexual conduct between consenting adults. . . . This emerging recognition should have been apparent when Bowers was decided.
Bowers must be wiped from the record, a matter of institutional shame like the shameful 1896 decision approving segregation in Plessy v. Ferguson that Kennedy so detested:
When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.
And with that, the Supreme Court placed the second of the legs of the liberal state under the gay community. Like the chicken thief saved from sterilization in Skinner and the married couple who wanted to decide how many children to have in Griswold, like the impoverished, desperate single pregnant woman in Roe v. Wade, gays and lesbians got a piece of their lives the state could not address. They would be citizens.
III. Public Safety
Nasty, Brutish, and Short
After Romer and Lawrence, the gay revolution had achieved two of the three foundations of citizenship in the liberal state. The third founding principle of the social contract is that the government exists, at the minimum, to protect its citizens from each other. This seems pretty obvious. But sometimes the most obvious part of citizenship is the hardest to win. More than any other group in society, gay people as a group lived in fear of their fellow citizens. Without the government providing them with physical security, their lives were, too often, nasty, brutish, and short.
As Aaron Kreifels rode his mountain bike on a deserted road outside of Laramie, Wyoming, on the morning of October 7, 1998, Matthew Shepard’s short life was ebbing away. Aaron saw what he thought was a scarecrow, lying near a fence. But it was Shepard, a fellow student from the university, beaten, tied to the fence, and left to die.
Matthew Shepard never got to be very big. When he was murdered at the age of twenty-one, he was only five foot two and a little more than a hundred pounds. The oldest son of two ordinary middle-class parents, he spent some time in school in Europe when his father was transferred to work in an oil field in Saudi Arabia. Back in the US for college, he enrolled at the University of Wyoming, where his dad had gone. By all reports, Shepard was openly gay. On the night he was murdered, he encountered two locals, Aaron McKinney and Russell Henderson, in a Laramie bar. He got into their truck, and they drove him to a deserted spot, where McKinney bludgeoned him with a gun butt and tied him to the fence to die. The blood-covered murderers then went home to their girlfriends, who helped them concoct a cover story.
Gay lawyer and politico John Aravosis was sitting at his computer a day later when an alert from one of the early gay e-mail lists pinged into his inbox. AP had a story about a gay kid hung from a fence at the side of the road in Wyoming. Just months before, Aravosis, already an old Washington hand who had worked as an online consultant for the liberal Children’s Defense Fund, had been talking to a friend about starting a website. “I’ll build you a simple website,” the friend said, “and you just keep adding stuff and it shows up at the top. Just keep posting.”
Aravosis posted, “The Associated Press reported that a gay student at the University of Wyoming was savagely beaten, burned and left to die, tied to a wooden fence outside Laramie, Wyoming, thirty miles northwest of Cheyenne.” A day later, the university called and asked if it could link to Aravosis’s website. The story got fifty thousand hits. “As soon as I saw the AP story,” Aravosis says, “I knew I was onto something bigger than just another dead gay kid.”
From then on, the website posted fifteen, twenty times a day on the Shepard case. Updates from AP, from the college paper, statements from the Human Rights Campaign and the president of the United States, a place to “send a card to Matthew”—Aravosis didn’t miss a beat in developing this story. From the first day, he used the Shepard story to drive a political narrative about hate crimes. Within four hours of posting the AP story, he quoted the local ACLU about how the attack proves the need for a law protecting gays against hate-motivated violence, which the Wyoming legislature had defeated recently. Interspersing increasingly horrific revelations from the scene—that the young man begged for his life, that his body was covered with burns—with political analysis and exhortations—the religious right’s usage of the issue as a wedge against the Democrats, the comparison of gays to alcoholics and kleptomaniacs—Aravosis tied the death of Shepard to the political agenda of protecting gays from violence with an unbreakable cord.
Five days later, without ever regaining consciousness, Shepard died of his wounds.
By the time he first saw reports of the attack on Matthew Shepard, old antiviolence activist Kevin Berrill thought he’d heard everything. Gays tortured, beheaded by serial killers, picked up while walking across a bridge, and tossed into the river below to drown. Still. “God,” Berrill remembers thinking, “the kid’s been crucified.”
Berrill had had his share of violence against gays and lesbians. When he started working as a receptionist at the National Gay Task Force (NGTF) in 1982, he had no clue that he would become the point man on this profound and wrenching issue. Local organizations had started reporting an uptick in incidents, including in New York’s heavily gay Chelsea neighborhood, right after Berrill started work. The Chelsea Gay Association held some town halls and started a hotline. Maybe gays had become more visible by virtue of the decade and a half of liberation since Stonewall, or maybe the AIDS epidemic rendered them vulnerable to the label of “diseased,” in addition to all the other labels they bore. Whatever the reason, by 1983, the number of reported incidents of attacks was skyrocketing.
The gay antiviolence movement did not have to start from scratch; it was consciously modeled on the feminist rape and domestic-violence programs, developed over the long years of bringing women into full citizenship by guaranteeing the fundamental right of security in their persons. Like their predecessors in gender violence, the gay community produced hotlines, counselors, refuges, and people to press the police and DAs. And there is always money for crime victims. With a grant from the state victims board, the official New York Anti-Violence Project was launched.
But Berrill, promoted from greeting people at the front desk at the Task Force, knew that community-based solutions were not sufficient and that, in order to get a meaningful official response to the problem, there needed to be official documentation of it. Task Force lobbyist Jeff Levi asked the United States Justice Department research arm, the National Institute of Justice, if it might have money for a survey of violence against gays and lesbians. “Is there violence against gays and lesbians?” the NIJ contact inquired.
The movement, as usual, had to do the first groundwork itself. Berrill developed a survey to pass out at Pride Week around the country. The first report, in 1983, showed that one in four gay men and one in ten lesbian women had been hit, punched, or kicked. Many studies done since then have produced roughly the same results. Every year the Task Force report got more press. Berrill went on The Oprah Winfrey Show. (In a new low point for daytime TV, the teaser for his segment of the show asked, “Is killing gays the solution for AIDS? Stay tuned.”)
Berrill had heard that the Anti-Defamation League of the Jewish organization B’nai Brith did an annual audit of anti-Semitic incidents, so he went to the ADL to see what he could learn. Turns out the ADL had been trying for a couple of Congresses to get a law passed requiring the FBI to collect data about anti-Semitic violence. Great, the Task Force folks responded, let’s just get them to put us in the Jewish bill also.
The Jewish activists were understandably less than thrilled to transform their essentially uncontroversial bill by adding gays to the mix. But Berrill began making the rounds of the Jewish organizations—the American Jewish Committee, the American Jewish Congress, groups that were interested in hate crimes—and the Jewish groups came around. “There were people in the ADL legal office,” Berrill says, “who were very sympathetic. The data showed there were many more injuries and deaths from antigay violence than anti-Jewish violence.” So they formed a coalition, Jews and gays, and began lobbying Congress in 1987 to pass a hate crimes statistics bill.
It took a couple of Congresses, but the gay movement had found a sweet spot at last. They said they weren’t asking for a rights bill, heaven forfend; the bill was just a statistics initiative to get the FBI to collect the data. “It was so hard for them to say we can’t collect the statistics,” Berrill remembers gleefully. “We had the moral high ground here and the religious right has such a hard time with that.” The Task Force lobbyist, Jeff Levi, organized it and Berrill gathered his alliance: “I got the National Organization of Black Law Enforcement Executives. The once-dreaded American Psychiatric Association brought in its brilliant lobbyist Bill Bailey and Bill brought in [the renowned sociologist] Greg Herek. There was this mass of civil rights groups, professional groups, law enforcement groups and it passed the House.” Even the conservative Mormon senator Orrin Hatch supported keeping sexual orientation in the bill. In 1990, President George H. W. Bush signed the federal Hate Crimes Statistics Act.
The religious right was right, Berrill concedes, to fear the law. “It was a crowbar that would give us leverage in other ways. We were trying to enlist the police, who gay people had been hiding from all these years. If the FBI was going to collect data, they would have to train law-enforcement officials around the country to recognize gays, and we would become three-dimensional to them. Organizations like the National Association of District Attorneys invited me to speak to them.”
The Task Force was pumped. In a pure ACT UP move, when the National Institute Against Prejudice and Violence, a leading research institution on ethnic violence in all its forms, resisted adding sexual orientation to its antiviolence legislation, the gay activists threatened to have a demonstration at its annual convention. Imagine hundreds of gay and lesbian demonstrators around the National Institute Against Prejudice meeting, chanting, “We die/they do nothing.” The institute backed down and the two organizations soon became firm allies. Now that they had the government gathering the numbers, they turned to the substance of prohibiting hate crimes altogether.
No Murder They Wrote
They stood on tall shoulders. One hot Mississippi night in June 1964, a dozen white men took three civil rights workers, James Chaney, Michael Schwerner, and Andrew Goodman, from their car and killed them. The two white men, Schwerner and Goodman, were shot once through the heart, but Chaney, who was black, was badly beaten before he was riddled with gunfire. Six weeks later, Congress passed the Civil Rights Act. In 1968, Congress amended the act, making it a federal offense to attack people because of their race while they attempted to engage in federally protected activities like voting or going to school. It was the first federal hate-crimes law.
By making racist motives an element of federal crime, the national government began the process of bringing African American southerners into the social contract that the state will protect its citizens from one another. It passed too late to use on Chaney’s killers, whom Mississippi refused to prosecute. (They were prosecuted under one of the federal Reconstruction-era civil rights acts.) But the modern campaign for meaningful laws to protect vulnerable groups, federal at first and then, as the enthusiasm for civil rights waned in Congress, at the state level, was born that Mississippi night.
There are three kinds of substantive hate-crimes laws. Laws like the 1968 Civil Rights Act make racially motivated violence a special crime. A handful of subsequent hate-crimes laws make actions that would not otherwise be criminal, like cross burning, into crimes. (These hate-crimes laws restraining expression were largely declared unconstitutional in 1992.) Still other hate-crimes laws add penalties to existing acts of wrongdoing if the crime is motivated by hate.
California is generally credited with passing the first hate-crimes law addressing hostility based on sexual orientation in 1984. By the time the cops/Jews/gays coalition motivated Congress to gather data in 1990, Oregon, Minnesota, Maine, and Wisconsin had all followed California’s lead.
After their success in Congress, the new hate-crimes coalition ramped up its efforts in the states. The ADL had already been working with a model statute. The coalition changed the model statute to include sexual orientation and bit by bit the coalition started persuading state legislatures to amend their existing hate-crimes laws to include sexual orientation or, in states where there was no hate crime-law at all, to pass laws covering all the categories of victims. Ultimately protected by the decision in Romer against further initiatives like Colorado’s Amendment 2, the gay state groups were engaged in conventional politics, lobbying for legislation to protect their interests.
Throughout the 1990s states and cities enacted some kind of hate-crimes law that addressed actions against gays. Predictable places like Tacoma, Washington, and Washington, DC, and unpredictable places like Utah and Louisiana put laws, either penalizing bias-based harassment and intimidation or enhancing penalties for existing crimes, into place. In 1993, Minnesota passed the first statewide hate-crimes law protecting transgendered people as well. The 1995 murder of anatomically female Brandon Teena, supposedly because of her presenting herself as male, and a case in DC involving the death of a victim whom emergency medical personnel neglected when they discovered she was anatomically male, ramped up the social activism for the physical protection of transgendered people.
By the time Aaron McKinney and Russell Henderson tied Matthew Shepard to the fence, Wyoming was one of only ten or so states with no protections of any sort, while a growing number of more progressive states were including transgendered people in their protections. In what Republicans must have bemoaned as the worst possible timing, they had to put the kibosh on the latest effort to pass a substantive hate-crimes law for gays and lesbians the very week in October 1999 that McKinney’s murder trial started. The Democratic Wyoming State Senate had finally passed a bill, after a decade of gay lobbying, and it was up to the Republican House to ensure it would not pass. Which the Republicans did.
When Laramie prosecutor Cal Rerucha began to assemble his case under Wyoming’s general law against murder, gays and lesbians from all over the country were watching every move, largely through the portal of John Aravosis’s new “bloggy” website. Instantly upon learning that Henderson, the sidekick at the murder, was going to plead guilty, Aravosis was all over the prosecution. Would this Wyoming prosecutor play the role of Mississippi, which had refused to prosecute the civil rights killers, but by the device of just rolling over? Just as the tumult subsided when news emerged that Henderson had received two consecutive life sentences with no hope of parole, the whole thing heated up again. McKinney would defend himself on the ground that Matthew Shepard had made a pass at him, driving him to an uncontrollable rage (the “gay panic” defense). Trial watchers held their breath; would the jury let the killer off with a slap on the wrist, like the jury in San Francisco had done twenty years before for the man who killed Harvey Milk?
As if to justify the Republicans’ arguments that existing law was good enough, the Wyoming justice system seemed to be working perfectly. The Wyoming judge scoffed at gay panic and forbade the defense lawyers to use it. In his speech at the sentencing hearing, Matthew’s father, Dennis, recognized that by this ruling the judge had opened the social contract to let gays in: “Because of your . . . willingness to take a stand and make new law in the area of sexual orientation and the ‘Gay Panic’ defense . . . you have emphasized that Matthew was a human being with all the rights and responsibilities and protections of any citizen of Wyoming.”
Two weeks later the Wyoming jury convicted McKinney of felony murder. The only thing that stood between McKinney and the death penalty were Matthew Shepard’s parents. Dennis and Judy Shepard are a pretty formidable force. The defense lawyers didn’t even propose a plea bargain to the prosecutor to save their client’s life. They went right to the Shepards. And with that, Matthew Shepard, tiny and gay, became as dangerous and as much a member of the social contract as the gun-toting Aaron McKinney. “Mr. McKinney,” Dennis Shepard said, “I’m going to grant you life, as hard as it is for me to do so, because of Matthew. . . . Mr. McKinney, I give you life in the memory of one who no longer lives. May you have a long life and may you thank Matthew every day for it.”
The Laramie Project
Then Dennis Shepard announced that the gay revolution was going to gain an invaluable asset—the Shepards. “I can’t bring him back,” his father said. “But I can do my best to see that this never, ever happens to another person or another family again.”
Judy Shepard has a round face with plump cheeks and a little bow mouth topped off with a mop of blond hair. For a few years of her adult life she taught grade school and then took her place as the devoted wife of the tall, take-charge oil-field safety instructor and as mother of two young sons. Family pictures of the Shepards before the murder have a certain Brady Bunch quality to them, except that Matthew was unusually handsome.
In America, the only thing better than a white, middle-class boy with a chiseled profile representing your cause, is that boy with a plump little mother with a vaguely western-southern twang and an oil man for a father. Throughout the decade after Matthew Shepard’s death, the Shepards just kept using their symbolic social conventionality to normalize other gay Americans. In 2010, a plainly dressed Judy Shepard posed for a picture when awarding the Matthew Shepard Foundation award to the octogenarian founder of the Imperial Court System, José Sarria, resplendent in red wig, tiara, and yellow chiffon.
José Sarria, founder of the Imperial Court System, winner of the 2010 Matthew Shepard Award, and Judy Shepard (Courtesy of José Sarria)
The Empire had raised one hundred thousand dollars for the Matthew Shepard Foundation in one year. It was the foundation’s biggest donor.
It took ten years. By the time Matthew’s killers were sentenced, John Aravosis’s website already carried statements from Judy Shepard on behalf of the Human Rights Campaign (HRC). The Shepards established the foundation in Matthew’s name, and Judy moved back to the United States from Saudi Arabia. For the first five years, it seemed like there was never a single HRC black-tie dinner that did not feature Judy Shepard.
Finally on October 22, 2009, a Democratic Congress handed a Democratic president the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act. Under the new law, any bias-motivated act of violence against a person is in the jurisdiction of the United States Department of Justice. The requirement of involvement in a federal activity is gone and the protected group has expanded to include not just racial or religious minorities but gays and lesbians and people who are transgendered. If the locals cannot or will not pursue the offenders, the Justice Department can step in and do what is required. On October 28, 2009, as Dennis and Judy Shepard looked on, President Barack Obama signed the bill.
The federal hate-crimes bill brought out the usual opponents. A group of preachers filed a class-action suit to have it declared unconstitutional as infringing on their right to call gays the sinners that they are. Straight white criminal law professor James Jacobs wrote a whole book about how terrible the hate-crimes law, and indeed all of “identity politics,” were. Powerful gay pundit Andrew Sullivan wrote a long, scholarly essay about how the law was merely symbolic. One month after Sullivan’s essay appeared, two men in their twenties attacked forty-nine-year-old gay Jack Price as he came out of a deli in Queens and beat him nearly to death. Prosecutors acting under the New York hate-crimes law, which increases penalties for crimes of bias, sent Price’s two assailants to jail for sentences of eight to twelve years.
Andrew Sullivan was partly right about the mostly symbolic value of the law. The number of reported hate crimes is not huge, and the state laws were already effective in many states, as the New York case reflected. The federal law is likely to be mostly of symbolic value. What he missed, of course, is the value of the symbol.
A month after Matthew Shepard died, playwright Moises Kaufman and his Tectonic Theater Project began coming to Laramie. Eighteen months later they premiered The Laramie Project, based on the testimony that they gathered. Judy Shepard is often quoted as saying that the play saved more gay lives than all the hate-crimes laws in America.
Kaufman knew exactly what he was doing: “Matthew Shepard’s murder was a defining moment in our history—in our history as Americans, in our history as gay people, in our history as people who are in the middle of a social justice fight, and some would say, in the middle of a social justice war. And Matthew Shepard was one of the great casualties of that war.” Although Kaufman saw many reasons why the Matthew Shepard murder became that kind of watershed historical moment—he was white, the killing resembled a crucifixion—primarily, Kaufman believed America was, “as a culture, finally able to hear it.”
It was time, Kaufman felt, for the theater to do its job in challenging America again to live up to its democratic principles: “We have in America this ideal of equality, we all have the same rights and the same responsibilities and this kind of thing happens and we ask how are we living up to this ideal?” Kaufman the playwright fully understood how art did its job. After telling the story of the town where Matthew Shepard was killed, The Laramie Projectcloses with the students at the local university performing in a production of Tony Kushner’s Angels in America. As in the original Angels in America, it is the hero, Prior Walter, who delivers the political message to the people of Laramie sitting in the audience. “We’re not going anywhere,” he says. “The world only spins forward. We will be citizens.”
Even Matthew Shepard’s killers knew about the power of symbols. When Kaufman’s people interviewed Aaron McKinney in the tenth year of his prison sentence for a sequel, Laramie, Ten Years After, they asked him if he held any hope for parole. “I’m never getting out of here,” the convict answered. “I’m the poster child for hate crime murders.”