Argument

The Real Reason the United States Lags on LGBTQ Rights

This week’s Supreme Court decision ends one legal battle, but reveals why the country’s record is so poor.

Joseph Fons holding a gay pride flag in front of the U.S. Supreme Court building in Washington on June 15.
Joseph Fons holding a gay pride flag in front of the U.S. Supreme Court building in Washington on June 15. Chip Somodevilla/Getty Images

By a 6-3 margin, on June 15, the U.S. Supreme Court ruled that Title VII of the Civil Rights Act of 1964—a provision that bars discrimination based on a number of characteristics, including sex—applies to discrimination on the basis of sexual orientation and gender identity. Aside from the fact that the ruling was penned by Justice Neil Gorsuch, a Trump appointee and replacement for former Justice Antonin Scalia, for decades the most reliable opponent of LGBTQ rights in the Supreme Court, the ruling was noteworthy for at least two reasons.

The first one is that the ruling closed part of a long and tortured struggle to end legal discrimination against LGBTQ people in U.S. history. This effort dates to 1974, when Rep. Bella Abzug (D-N.Y.) introduced the Equality Act in the U.S. House of Representatives. Coinciding with the fifth anniversary of the Stonewall Riots, the Equality Act proposed adding prohibitions against discrimination in federal programs, housing, and public accommodation on the basis of sexual orientation and gender identity to the Civil Rights Act of 1964. The bill did not even make it out of the review committee. In 1994, the Equality Act was reimagined as the Employment Non-Discrimination Act, which primarily dealt with workplace discrimination. It likewise failed to become the law of the land. In 2019, the Democratic-controlled House of Representatives finally passed a new version of the Equality Act. But the Republican-controlled Senate never acted on it. This week, the Supreme Court effectively bypassed this stalled legislative process.

The second reason is that the ruling, known as Bostock v. Clayton County, also changed the United States’ standing as the last major Western democracy without nationwide legal protection against LGBTQ discrimination. Until last week, such protection was only available in the United States through a patchwork of state and local laws that did not cover the entirety of the country. In fact, only half of all LGBTQ adults in the United States lived in states that offered protection against LGTBQ discrimination. This situation allowed for some troubling situations. In Texas, for example, a person could legally marry someone of the same sex, but they could also be fired or denied the opportunity to rent a home for doing so. With the Supreme Court decision, such inequity has been addressed the same way most other discrimination against the LGBTQ community has been tackled in the past: through the courts, not the political process.

It is clear that the United States has a particularly troubled relationship with the push for LGBTQ equality. Homosexual sex remained a crime in the country far longer than in any other Western democracy. It was not until 2003 that the U.S. Supreme Court struck down the last remaining anti-sodomy laws, in its landmark decision of Lawrence v. Texas. At that time, 10 states—Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Michigan, Utah, and Virginia—still banned consensual sodomy regardless of the sex of those involved, and four—Texas, Kansas, Oklahoma, and Missouri—prohibited sodomy acts by same-sex couples. By then, most countries in Western Europe and the Americas had long stopped considering it a crime: France made the change in 1791, Brazil in 1830, Mexico in 1871, and England and Wales in 1967.

The United States was also one of the last major Western nations with laws and ordinances barring homosexuals from employment in the federal government, including the military. And it was the only country to conceive of allowing gays and lesbians to serve in the military as long as they kept their sexuality a secret. The United States was among the last Western democracies to join the marriage equality movement. By the time same-sex marriage became legal nationwide in the United States in 2015—on orders from the U.S. Supreme Court—it was already the norm in some twenty nations. Among those were liberal stalwarts such as Canada, the Netherlands, and Sweden, but also places not especially known for their socially liberal policies, such as Argentina, Portugal, and Spain. Even some developing nations, such as Brazil and South Africa, legalized same-sex marriage ahead of the United States.

According to the conventional wisdom, the United States’ struggles with LGBTQ rights are rooted in the outsized role that religion plays in American politics and culture. Remarking on this point, sociologist Seymour Martin Lipset wrote in 1996: “Polls indicate Americans are the most churchgoing in Protestantism and the most fundamentalist in Christendom.… [They] have a stronger sense of moral absolutism than Europeans and even Canadians.” That is certainly reflected in U.S. jurisprudence, which has been more homophobic than that in most other Western nations. When in 1986 the Supreme Court upheld, in Bowers v. Hardwick, the legality of sodomy bans, Chief Justice Warren E. Burger rationalized the decision by explaining that “condemnation of [homosexual] practices is firmly rooted in Judaeo-Christian moral and ethical standards.”

Religion in the United States has also enabled the Western world’s strongest backlash against LGBTQ rights. Save Our Children, the 1977 anti-gay crusade led by country-Western singer Anita Bryant, which was famous for depicting homosexual males as predatory pedophiles, argued that “God gave mothers the divine right to reproduce and a divine commission to protect our children, in our homes, business, and especially our schools.” Once embraced by televangelist Jerry Falwell, the founder of Moral Majority and the person most directly responsible for bringing the evangelical movement into the Republican Party, religiously fueled homophobia reached unprecedented heights. In his 1980 manifesto Listen, America! Falwell wrote that “homosexuality is Satan’s diabolical attack upon the family, God’s order in Creation.” With Falwell’s backing, protections for LGBTQ citizens all over the country began to crumble and the movement to nullify anti-sodomy laws was stopped cold. In the 2000s, a coalition of Evangelical, Catholic, and Mormon leaders likewise came together to campaign against same-sex marriage on the grounds that it would bring about the end of traditional marriage and the demise of the family. The movement succeeded in banning same-sex marriage in 31 states.

That said, the “religious thesis” is not unimpeachable. Indeed, it could well be a distraction. After all, other deeply religious societies have made tremendous progress in advancing LGBTQ rights. Moreover, the American religious landscape has changed dramatically in recent decades as a consequence of rising secularism. As recently noted by the Atlantic, “In the early 1990s, the historical tether between American identity and faith snapped. Religious non-affiliation in the U.S. started to rise—and rise, and rise.” By 2018, the percentage of so-called “nones” (an assortment of atheists, agnostics, and spiritual dabblers) had approached almost one-quarter of the population. The magazine cited three historical events as driving the United States’ “nonreligious lurch”: the melding of the Republican Party with the Christian right, the end of the Cold War, and 9/11.

Social movements striving for equality have had to seek to achieve their rights through the same constitution that once justified their oppression.

A look at the experience of other countries points to more compelling factors behind the United States’ slow and agonizing pace on LGBTQ rights. For starters, progress has been hindered by the absence in U.S. history of a major reckoning during which inequality was tackled comprehensively. Consider by contrast the cases of Brazil and South Africa, which like the United States have multiracial populations, a long history of systemic discrimination, and rich religious traditions. In both countries, brand-new constitutions intended to address past discrimination (Brazil’s in 1988 and South Africa’s in 1996) made any form of inequality unlikely to survive constitutional scrutiny. In the United States, by contrast, social movements striving for equality have had to seek to achieve their rights through the same constitution that once justified their oppression.

To be sure, many marginalized groups in the United States, including LGBTQ people, have found success in the courts under the 14th Amendment mandating equal protection under the law. But piecemeal litigation is expensive, time-consuming, and the battle is usually accompanied by a backlash. After the Supreme Court ruled in Lawrence v. Texas that sodomy laws were unconstitutional, public support for homosexuality plummeted. According to a Gallup poll in July 2003, just one month after Lawrence v. Texas was announced, only 48 percent of respondents believed that gay and lesbian sex should be legal, down from 60 percent two months before. Anti-LGBTQ rights activists seized the moment to launch a campaign to ban same-sex marriage at the state and federal levels.

Similarly, since Obergefell v. Hodges legalized same-sex marriage in 2015, the right has fought back with a vengeance. According to the American Civil Liberties Union, from 2013 to 2017, legislatures across the United States have introduced 348 bills, 23 of which have become law, that could limit or undermine LGBTQ rights. At least 70 bills came in the first half of 2017 alone, a steep increase from previous years. Many of these measures fall under the category of “religious freedom restoration acts,” which exempt individuals, businesses, and organizations from any governmental regulation that would force them to violate sincerely held religious beliefs.

Another important comparative point is how timid U.S. political parties have been in embracing LGBTQ equality. Britain’s Labour Party decriminalized homosexuality in England and Wales in 1967, two years before the Stonewall Riots, while the Conservative Party-led government legalized same-sex marriage in 2013. By contrast, the Democratic Party only embraced same-sex marriage in 2012, and Trump is running for reelection on a Republican Party platform against same-sex marriage and in favor of gay conversion therapy. The lack of bold party leadership on LGBTQ issues in the United States has meant that the LGBTQ movement has had to fend for itself politically. It has also meant that LGBTQ equality has been undercut by other social movements.

During the 1960s, for example, gay African-Americans were sidelined in the civil rights movement. This was most famously the case of Bayard Rustin, recognized as the chief strategist behind the 1963 March on Washington. He resigned from Martin Luther King Jr.’s staff amid persistent rumors about his sexuality. Rustin, who was openly gay, had been arrested and jailed for 60 days in 1953 on charges of “lewd vagrancy,” after being caught having sex with another man in a parked car. Rustin, who died in 1987, has only recently begun to receive recognition for his contribution to the civil rights movement. In 2013, President Barack Obama honored Rustin with the Presidential Medal of Freedom. Earlier this year, California Gov. Gavin Newsom granted Rustin a posthumous pardon.

The 1970s likewise witnessed a war within the feminist movement over whether lesbians belonged in the movement. Some feminist leaders, such as Betty Friedan, the co-founder of the National Organization for Women (NOW), opposed the inclusion of lesbians in the organization, fearing that “man-hating” lesbians would hinder the cause of feminism. In the end, NOW embraced the struggle for lesbian rights, but the split within the feminist movement was exploited by the Christian right to attack both lesbian rights and the feminist movement as a whole.

Finally, LGBTQ equality in the United States has been hindered by the absence of a compelling language with which to wage the struggle. Across Western Europe and Latin America, LGBTQ movements have availed themselves of the inspiring language of human rights to secure their rights, including same-sex marriage. But in the United States, demands for equality rooted in human rights have fallen flat, given the success by conservatives in positioning international human rights efforts as un-American—a strange claim considering that prominent Americans played leading roles in drafting the 1948 Universal Declaration of Human Rights. Writing about the African American experience with human rights, historian Carol Anderson noted that attacks on human rights as a foreign corruption of American ideals “systematically eliminated human rights as a viable option for the mainstream African American leadership.”

Surely, we should rejoice in the U.S. Supreme Court doing the right thing in banning anti-LGBTQ discrimination. But this should not blind us to the fact that the struggle for equality in the United States has been harder and caused more anguish to the LGBTQ community than almost anywhere else in the West. And like past rulings advancing LGBTQ equality, this new one banning discrimination could well provoke another backlash. For a country that regards itself as the cradle of freedom, this is not something to be proud of.

Omar G. Encarnación is a professor of political studies at Bard College and author of Out in the Periphery: Latin America's Gay Rights Revolution.

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