Guest Blogger

Gay Rights during the Bush Presidency

Filed By Guest Blogger | January 19, 2009 2:00 PM | comments

Filed in: Gay Icons and History, Marriage Equality, Politics
Tags: Bush administration, civil rights, gay marriage, gay rights, marriage amendment, marriage equality, same-sex marriage, sodomy, sodomy laws

Editors' Note: Guest blogger Carlos Mock, MD has published three books and is the Floricanto Press editor for its GLBT series. He was inducted in the Chicago Gay & Lesbian Hall of Fame in October of 2007. He grew up middle-class in the suburbs of San Juan, Puerto Rico.

The year 2000 gave us two setbacks to the gay movement.

President Bush was "elected" under much controversy in 2000 after a December 12, 2000 7-2 United States Supreme Court decision stating that the Florida Supreme Court's plan for recounting ballots was unconstitutional, as well as a 5-4 decision that ended the Florida recounts and allowed Florida to certify its vote. gay_boyscouts.gifBush claimed he was reaching across party lines to bridge a divided America, saying, "the President of the United States is the President of every single American, of every race, and every background."

In 1996 the Supreme Court of the United States ruled in Romer v. Evans against an amendment to the Colorado state constitution that would have prevented any city, town or county in the state from taking any legislative, executive, or judicial action to protect homosexual citizens from discrimination on the basis of their sexual orientation. But on June 28, 2000, the Supreme Court of the United States ruled that the Boy Scouts of America had a First Amendment right to exclude people from its organization on the basis of sexual orientation, irrespective of any applicable civil rights laws.

Gay Sex Becomes Legal in America

After these setbacks, organizations like Lambda Legal continued our fight and in 2003, the United States Supreme Court ruled in Lawrence v. Texas that laws against sodomy or anal sex cannot be directed at homosexuals alone, and furthermore, that intimate consensual sexual conduct is part of the liberty protected by substantive due process under the Fourteenth Amendment. lawrence-v-texas.gifThe majority opinion, written by Justice Anthony Kennedy, explicitly reverses Bowers v. Hardwick. (On June 30, 1986, the Supreme Court of the United States ruled in Bowers v. Hardwick, that homosexual citizens had no constitutional right to privacy.)

What was significant about this decision was that under the common law, the existence of rights of sexual partners were recognized through the marriage contract. That is, in common law there was no stand-alone right to engage in sexual activity, be they male or female, adult or minor. But, it is a basic legal principle under the common and statutory laws that everything that is not forbidden by the common and statutory law is allowed. As sexual acts usually take place in private, few cases involving engagement in sodomy and fornication came before the courts, and no precedent was established under the common law forbidding fornication; with sodomy, the common law was mixed.

This was most notable in Judge Scalia's dissension: with this decision, Scalia concluded, the Court "has largely signed on to the so-called homosexual agenda." While Scalia said that he has "nothing against homosexuals, or any other group, promoting their agenda through normal democratic means," Scalia argued that the Court has an obligation to decide cases neutrally.

Gay Marriage and Marriage Equality

In Goodridge v. Department of Public Health, a later case decided by the Massachusetts Supreme Judicial Court, held that the Massachusetts Constitution requires that marriage be available to homosexual as well as heterosexual couples.

Immediate comparisons were made to the 1967 Supreme court decision on interracial marriages. Opponents of same-sex marriage argue that men and women are fundamentally different from one another, whereas interracial couples still fit within the "one man and one woman" definition of marriage.

Louisiana State University law professor Katherine Spaht holds that there is an inherent difference between interracial marriage and same-sex marriage because same-sex couples cannot procreate; Prof. Spaht characterizes the debate as follows: "The fundamental understanding of marriage has always been, by definition, a man and a woman. Never did Webster's Dictionary define the term marriage in terms of the races."

Proponents of same-sex marriage make a comparison between racial segregation and segregation of homosexual and heterosexual marriage classifications in civil law. They argue that dividing the concept of same-sex marriage and different-sex marriage is tantamount to "separate but equal" policies (like that overturned in the U.S. Supreme Court case Brown v. Board of Education), or anti-miscegenation laws that were also overturned by the Supreme Court in 1967 in Loving v. Virginia.

All of a sudden, Pandora's box was opened. Now that our relationships were "officially" legal--we were citizens like any other--therefore the 14th Amendment to the constitution now would fully apply to homosexuals: this amendment provides a broad definition of citizenship, overruling Dred Scott v. Sandford (1857) which had excluded slaves and their descendants from possessing Constitutional rights. The amendment requires states to provide equal protection under the law to all persons (underline is mine) within their jurisdictions and was used in the mid-20th century to dismantle racial segregation in the United States, as in Brown v. Board of Education (1954). Its Due Process Clause has been the basis of much important and controversial case law regarding privacy rights, abortion (see Roe v. Wade), and other issues.

Massgaymarriage.gifNo one in the gay movement was ready for the "M" word and the mere possibility that marriage could be a reality for gay citizens became the biggest threat to the conservative right.

Same-sex marriage in the U.S. state of Massachusetts began on May 17, 2004, as a result of the Supreme Judicial Court of Massachusetts ruling in Goodridge v. Department of Public Health that it was unconstitutional under the Massachusetts constitution to allow only heterosexual couples to marry. Massachusetts became the sixth jurisdiction in the world (after the Netherlands, Belgium, Ontario, British Columbia, and Quebec) to legalize same-sex marriage. It was the first U.S. state to make same-sex marriages legal.

The 2004 Elections

All hell broke lose! The success in Massachusetts started a campaign in 2004 to add state constitutional amendments banning gay marriage into twenty states: Texas, Arkansas, Louisiana, Oklahoma, Colorado, Nebraska, South and North Dakota, Utah, Idaho, Wisconsin, Michigan, Ohio, Kentucky, Virginia, Alabama, Georgia, South Carolina, Florida, and Arizona.

President Bush focused his campaign on national security, presenting himself as a decisive leader and contrasted Kerry as a "flip-flopper." Bush's point was that Americans could trust him to be tough on terrorism while Kerry would be "uncertain in the face of danger." gay marriage cartoon.jpgBush also sought to portray Kerry as a "Massachusetts liberal" who was out of touch with mainstream Americans. Karl Rove very wisely mobilized the religious right to come vote against those "activist judges" who were going to legalize polygamy and bestiality and break the foundation of marriage in America.

It worked wonderfully--the conservatives came out in droves and 19 out of the 20 constitutional amendment passed (all but Arizona), giving us the biggest setback in gay rights in one day! According to one exit poll, people who voted for Bush cited the issues of terrorism and moral values as the most important factors in their decision. Bush was re-elected in 2004 by a comfortable majority. Elements in the Democratic Party went as far as to accused the LGBT community of causing them to lose the 2004 elections.

Civil Rights Legislation

In Illinois in January 2005, with the Illinois state Senate and House passed SB3186. When the Governor signed the bill into law on January 21, Illinois became the 14th state to prohibit discrimination based solely on sexual orientation and only the fifth to include gender orientation. The legislation specifically bars discrimination in the areas of employment, housing, public accommodations and credit transactions.

Our success in Illinois was the first setback to the right wing movement and soon the left organized. We learned from our mistakes and regrouped. Today, twenty states, the District of Columbia, and over 140 cities and counties have enacted basic civil rights. The states banning sexual orientation discrimination in private sector employment are California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and Wisconsin (the first state to do so, in 1982).

gay_agenda.gifOn November 22, 2007, Michigan governor Jennifer Granholm issued an order guarding the rights of transsexuals. She prohibited discrimination of state workers based on gender identity or expression. Many of these laws also ban discrimination in other contexts, such as housing or public accommodation.

Today, in the United States, same-sex couples can marry in Massachusetts and Connecticut, but their unions are not recognized nationally. The U.S. states of Vermont, New Jersey and New Hampshire offer civil unions. Also, Oregon has domestic partnership laws that grant some of the rights and responsibilities of marriage. Maine, Washington, Maryland, and the District of Columbia grant certain limited benefits through domestic partnerships, and Hawaii has reciprocal beneficiary laws.

From June 2008 until November 2008, California also granted same-sex marriages. On November 4, 2008 Proposition 8 took away the rights of Californians to marry. So this bring us to the present. The fight against proposition eight continues, just as civil suits in Iowa and many other on the rights of gay couples to adopt children.

It was a fascinating time to be an activist during the Bush years, and we are hoping that the Obama years bring more successes to our movement.


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Carlos, you cite LSU professor Katherine Spaht as noting that interracial couples may procreate while gay couples may not. This ignores that the ability to procreate was not mentioned in Loving v. Virginia with regard to why marriage is a basic human right and civil right "fundamental to the orderly pursuit of happiness." The Supreme Court clarified its reasons for why marriage is a fundamental right in Turner v. Safley in 1987, when it held that the right to marry is so important that it may not be denied to incarcerated felons. (Serial killers get to marry; we do not). The court gave 4 reasons for the right including 1)the public proclamation of love and commitment 2) the spiritual or religious dimension of which marriage often partakes 3) the ability to consummate, or love and its expression and 4) the tie of the legal right to marry to benefits, including the legitimation of children and social security survivor benefits . Each of these principles, of course, applies equally to gay couples. The procreation argument also ignores that many gay couples have children while many straight couples cannot or do not. While some argue that marriage can be limited to straight people to promote biological reproduction, no one has explained how treating committed gay couples as legal strangers leads straight couples to reproduce. Politicians, the media and frankly many courts have allowed the right wing to mischaracterize the law on marriage. We should correct their misinformation at every turn

I graduated from LSU Law School just when Katherine Spaht was beginning her teaching career. Back then, a woman law professor was a rarity, and hopes for a stellar career for her were flying high. We wondered how she could have married into the Spaht family, as her father in law had been one of the last openly segregationist bigot statewide politicians.

Sadly, her legal philosophy soon confirmed the deepest fears that our preconceived notions about her marriage family portended. She made her academic career based as a "Family" law expert, but consistently maintained her decidedly anti-choice, misogynistic, paternalistic outlook about life. As such, she is an iconic anti feminist in Louisiana, idolized by the Talibangelical fringe.

In her role as iconic family law expert, she has been at the forefront of every regressive legal thought about marriage and family in Louisiana for 40 years, including anti-choice legislation, creating an entirely Christianist new "Covenant" marriage system paralel to traditional marriage, and leading the charge against Marriage Equality.

The feelings of the LGBT community and other progressive elements in her home state (yes, there are some of us here) are best summed up by the lines of the chauffeur character portrayed by Morgan Freeman in "Driving Miss Daisy:" (When Miss Daisy asked) "Well who in the world would want to bomb a temple?" ... Hoke replied: "Ah, Miss Daisy, you know it always be the same ones."

What a fantastic roundup of events, Carlos. Thanks for that.