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Today Is The Last Day of the Last Active Legal Penalty Against Gay People

Jim Burroway

September 19th, 2011

Today is the last day in which the military ban on gays serving openly, known as “Don’t Ask, Don’t Tell” in its latest incarnation, remains the law of the land. Which means that today marks the very last day in which the U.S. Government can legally initiate an active investigation into the private lives of gay citizens solely to determine whether they should be formally sanctioned. Tomorrow’s formal elimination of DADT marks a very important legal milestone in U.S. history, when the the federal government’s last legal active pursuit against gay people comes to an end.

Regular BTB readers who have been following our historical items in the Daily Agenda will remember that sixty years ago, there were active campaigns to root out homosexuals from all branches of the federal government solely because of their homosexuality. In 1953, that campaign culminated in President Dwight D. Eisenhower signing Executive Order 10450 which formalized the federal employment ban. By then, the U.S. military had long searched out homosexuals from among their ranks, and when they were found, they were often sent to mental hospitals or the brig. Either way, virtually all of them would wind up with a dishonorable discharge which, in the days when military service was universal, made finding a job afterward extremely difficult. Beginning in 1952, gay people were formally prohibited from entering the country under a legal provision barring “aliens afflicted with psychopathic personality, epilepsy, or a mental defect.” That languages was interpreted to include gay people, an interpretation which remained in effect until 1990 even though the American Psychiatric Association declared that homosexuality was not a mental defect in 1973. Altogether, these legal requirements mandated thousands of active investigations into the private lives of thousands of citizens in order to impose legal sanctions.

And all of this was against a backdrop in which homosexuality was a criminal offense in every state in the until 1961, when Illinois overhauled its statutes and dropped its anti-sodomy law. Illinois would remain alone in that regard until 1970, when other states slowly began to drop their anti-gay statutes. After a series of lawsuits and demonstrations, the U.S. civil service began hiring gay people in 1975. By the 1990s, most federal investigative services charged with the granting of security clearances no longer considered sexual orientation a barrier to holding clearances, and President Clinton’s 1995 executive order brought the rest of the security investigative services in line. In 2003, the U.S. Supreme Court struck down those anti-sodomy laws which still remained on the books. With those cumulative acts, U.S. civilians were finally free from legally mandated investigations to determine their eligibility for legal sanction. No U.S., state, or local law enforcement agency could launch an investigation into the private romantic life of a U.S. citizen solely to determine whether that citizen should be legally penalized because of it.

Sure, the law didn’t (and still doesn’t) provide for full equality for gays and lesbians: we can’t marry in most states, it is still legal for employers to fire someone solely because of his or her sexuality, and LGBT couples face various other enormous tax and other financial inequalities under the law. But these are consequences of legal indifference, not the products of active and hostile pursuit. Where law enforcement investigations designed solely to determine one’s sexual orientation were legally mandated and often played out in the front pages of newspapers and the evening news, today we have a whole generation for whom such a scenario is unthinkable — with one glaring exception. Gays and lesbians serving in the military still operate under a McCarthyite prohibition based solely on their private lives. But today is the last day of that official, legal federal obsession with the love lives of Americans. Tomorrow we enter a new era. For the first time in our nation’s history, no gay American will be found guilty for loving someone. We’re still far from equal in the eyes of the law, but beginning tomorrow we are, at long last, fully free.

Comments

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werdna
September 19th, 2011 | LINK

I know this is a US blog, but you do cover a lot of non-US stuff so you might consider adding “in the US” to your headline. It certainly isn’t the last day of the last active legal penalty against gay people *anywhere*, though it’s a wonderful milestone nonetheless.

BlackDog
September 19th, 2011 | LINK

“…But today is the last day of that official, legal federal obsession with the love lives of Americans. Tomorrow we enter a new era.”

…Which of course means that reactionary social “Conservatives” will continue to be obsessed with this topic for at least 20 years. (Hell, some of these people are still worried about Communists when most of the rest of the world has long since moved on!)

Congrats to gay Americans from this Air Force veteran.

justme
September 19th, 2011 | LINK

As soon as I read the headline, I knew I was going to comment that it was an excellent one. werdna makes a good point and a change wouldn’t hurt the headline’s impact, but I think “in the United States” is clearly implied, as today is an historic day for this country.

It’s hard to believe that the first gay people to be raised in the United States of America who will have never known a government that actively tried to destroy them for who they are will be the ones that will be born tomorrow.

Graham
September 19th, 2011 | LINK

“Today is the last day in which the military ban on gays serving openly, known as “Don’t Ask, Don’t Tell” in its latest incarnation.”

Um, is it me or is this opening sentance more like just a noun phrase instead of a sentance? It, like, needs a verb or something.

Ben In Oakland
September 19th, 2011 | LINK

Um…….

DOMA.

Stae DOMAs.

Anti-adoption laws.

fannie
September 19th, 2011 | LINK

“Which means that today marks the very last day in which the U.S. Government can legally initiate an active investigations into the private lives of gay citizens solely to determine whether they should be formally sanctioned.”

If that’s your definition, I doubt your claim.

I’m thinking of an IRS investigating a legally-married same-sex couple who filed their taxes jointly and is now being audited, investigated, and sanctioned for perjury because DOMA doesn’t allow the IRS to recognize same-sex marriage.

I’m thinking of a gay man who married a woman for green card purposes and is not being investigated, sanctioned, and possibly deported.

I’m truly happy about DADT and didn’t want to rain on your parade, but I also think your claim is over-celebratory and possibly damaging to LGBT rights. It would be reasonable for members of the general public to read your headline and claims and think, “well, our work is done! LGBT inequality is over!”

justme
September 19th, 2011 | LINK

I think the point is that the things listed in the comments above are about inequality vs. persecution. This is the end of the government saying that you’re wrong simply for being gay, but it’s not the end of the government saying that being gay is wrong. That’s the distinction I see, anyway.

Still sucks, but tomorrow will be still be better than today for human rights in this country. Still not equal, but there are no more witch hunts based solely on who you are. A fine line, but I share the opinion that it’s an important one.

JohnAGJ
September 19th, 2011 | LINK

It’s been a long 18 years.

Very long.

I wish my gay and lesbian shipmates well.

Btw, I have this amusing image of folks like Congressman McKeon frantically scheming about kicking out as many gays as they can before midnight. Eh, you gotta laugh at them sometimes lest you go insane…

Jim Burroway
September 19th, 2011 | LINK

That’s correct. There are still inequalities built into the law. Adoption, marriage, etc. But with the fall of DADT, there is no legal framework in which the government can launch an investigation into someone for the sole purpose of determining their sexuality in order to apply legal sanctions for their sexuality alone.

Nobody will be fired or fined or thrown in jail over DOMA or Anti-Adoption laws. Certainly, those laws are odious — DOMA, I think, represents the single greatest barrier to LGBT equality, but nobody’s going to jail or fined solely because of their sexual orientation as a result of these laws.

Similarly, the investigations “fannie” lists are investigations that are not based solely on an individual’s sexual orientation. There are IRS investigations all the time as to whether someone can legally file their taxes as they did, and there are all kinds of INS investigations into sham marriages for the purpose of avoiding deportations, all of which carry penalties. But the violations being investigated are not whether a person is gay or not. They are in other alledged actions — entering a alledged sham marriage, filing tax returns in a manner that the IRS doesn’t recognize — which are being investigation. In neither case does proving that someone is gay alone make them guilty of a crime or subject to penalties. But the tax case, certainly, does highlight that under DOMA we still remain very unequal under the law.

Graham, I’ve fixed the opening sentence. Thanks.

tristram
September 19th, 2011 | LINK

Eternal vigilance is the price of liberty – and equality. This is a huge milestone, but the present predominance in the House and the Republican Party of christianist fundamentalists threatens much or our recent progress.

The person we elect as POTUS in Nov. 2012 will (1) have the power, as I understand it, to effectively re-impose DADT by executive order – by a stroke of the pen – and most (if not all) the serious Republican candidates have pledged or stated a desire to do so; (2) have similar power to reverse all of the lesser but important changes that Obama has made by executive order or agency rule-making; and (3) most likely have the opportunity to nominate replacements for two members of the ‘liberal wing’ of the Supreme Court, and, again, virtually all the R. candidates have pledged or indicated an intent to give NOM essentially a veto right over those nominations.

With a Perry (or even Romney) presidency and a R. takeover in the Senate (both reasonable possibilities), we could, in just a few years, have an SC that would not only be hostile to the marriage equality and DADT cases currently in the pipeline, but one that is willing to accede to Justice Scalia’s continuing campaign to reverse Lawrence.

fannie
September 19th, 2011 | LINK

“Similarly, the investigations ‘fannie’ lists are investigations that are not based solely on an individual’s sexual orientation.

LOL, okay, not sure why Jim put scare quotes around my name.

Anyway, the investigations I mentioned above absolutely could be based solely on an individual’s sexual orientation. In the case of the gay man who married a woman for green card purposes, I could foresee someone informing the government that the man was gay, potentially launching an investigation into the man’s homosexuality to demonstrate that his marriage was a sham.

So yeah, I still think it’s inaccurate for you to claim:

“Which means that today marks the very last day in which the U.S. Government can legally initiate an active investigation into the private lives of gay citizens solely to determine whether they should be formally sanctioned.”

But, whatever. I’m not interested in belaboring the point here.

JohnAGJ
September 19th, 2011 | LINK

Nobody will be fired or fined or thrown in jail over DOMA or Anti-Adoption laws. Certainly, those laws are odious — DOMA, I think, represents the single greatest barrier to LGBT equality, but nobody’s going to jail or fined solely because of their sexual orientation as a result of these laws.

Indeed. I don’t think some folks realize what this means to those who served under DADT. It took me years before I could watch and enjoy the TV show “NCIS”, not because of the show itself but because the real NCIS was essentially the enemy of gay sailors. It may sound crazy now but I feared them, knowing about too many cases where gay sailors were busted by overzealous agents. If nothing else this repeal gives gay & lesbian sailors the freedom to be themselves, even closeted if they so choose, without having to constantly look over their shoulders. This was something I could only dream about back in 1993.

JohnAGJ
September 19th, 2011 | LINK

Anyway, the investigations I mentioned above absolutely could be based solely on an individual’s sexual orientation. In the case of the gay man who married a woman for green card purposes, I could foresee someone informing the government that the man was gay, potentially launching an investigation into the man’s homosexuality to demonstrate that his marriage was a sham.

Yet their sexuality isn’t the crime being investigated in this case. Instead it is marrying someone for fraudulent purposes in obtaining a green card or some financial benefit. That seems to me to be a crucial distinction.

fannie
September 19th, 2011 | LINK

“Yet their sexuality isn’t the crime being investigated in this case. Instead it is marrying someone for fraudulent purposes in obtaining a green card or some financial benefit. That seems to me to be a crucial distinction.”

Yeah, I’m a lawyer, I get that distinction. But Jim didn’t make that distinction in his original post.

He claimed that today is the last day the government “can legally initiate an active investigation into the private lives of gay citizens solely to determine whether they should be formally sanctioned.” I provided two instances where the government still indeed can initiate an investigation.

I get what Jim’s trying to say (based on his later statements in this comment section), but the claim in his original post is much larger than his more qualified statements.

TampaZeke
September 19th, 2011 | LINK

There may be provisions of American immigration law that might still allow the government to launch an investigation into the sexual orientation/partnership arrangement of a gay person with potential fines, imprisonment or deportment being possible outcomes of such an investigation.

Jim Burroway
September 19th, 2011 | LINK

Actually, I think I did make that distinction in the very last paragraph. What’s more, in the second to the last paragraph, I wrote about the end of sodomy laws (but before I got to the lone exception in the last paragraph):

No U.S., state, or local law enforcement agency could launch an investigation into the private romantic life of a U.S. citizen solely to determine whether that citizen should be legally penalized because of it.

In the last paragraph, I went into the lone exception — the case of military personnel:

Where law enforcement investigations designed solely to determine one’s sexual orientation were legally mandated and often played out in the front pages of newspapers and the evening news, today we have a whole generation for whom such a scenario is unthinkable — with one glaring exception. Gays and lesbians serving in the military still operate under a McCarthyite prohibition based solely on their private lives.

Taken together, I think together the distinction is there. But then I’m not a lawyer, so I tend to be less pedantic with my individual sentences when I have the rest of the post to flesh them out.

Jim Burroway
September 19th, 2011 | LINK

TampaZeke,

What provisions of immigration law are you thinking about? I’m not aware of a case where someone’s sexual orientation per se would bring out such a result.

Mark F.
September 19th, 2011 | LINK

Jim, am I correct that 40 Senators could block any future effort to reinstate DADT and we don’t need to seriously worry about a possible GOP takeover reversing this in 2013?

Jim Burroway
September 19th, 2011 | LINK

That’s only correct if DADT repeal could only happen via the law. We must remember that DADT didn’t become law until 1993. Before that, bans on gays in the military were maintained as Pentagon policy, and those bans could easily be reinstated under a GOP president and Defense Secretary, and they could be made much worse than was provided under DADT. It’s not Congress falling under the influence of 60 Senators that I would worry about. It’s the next president.

TampaZeke
September 20th, 2011 | LINK

That’s why the LCR are continuing with their lawsuit to declare the law unconstitutional, in spite of the Obama administration’s request that the suit be thrown out because it’s now unnecessary.

For the very reasons mentioned above it IS necessary to continue with the suit.

Jim, none in particular. Just wondering out loud if there might be such provisions tucked away within immigration law.

fannie
September 20th, 2011 | LINK

“But then I’m not a lawyer, so I tend to be less pedantic with my individual sentences when I have the rest of the post to flesh them out.”

What you passive-aggressively call “pedantic,” I like to think of as accurate.

But point taken. It’s obviously not a simple point you’re able or willing to concede.

enough already
September 20th, 2011 | LINK

This is a major step forward.
It is also a great answer to those among us who insist that there is only ‘one’ right way to have our full human and civil rights restored.
Until we have the courts on-board, the near certain loss in 2012 of the senate, the presidency and the continued Republican majority in the house means that we will see all reversible gay rights reversed in 2013 and, as soon as one non-conservative Supreme Court Justice is replaced with a good Christian, the end of all gay rights and the re-imposition of persecutions for even being gay.

Timothy Kincaid
September 20th, 2011 | LINK

It is certainly true that DADT could be reverse by hostile politicians. For that matter, slavery could be reinstated by enough hostile politicians (in both the Federal and State governments).

But our comfort is that this isn’t 1992.

While it is possible that Republicans could gain control of the Senate, hold the House, and take the presidency, and it is possible that they could decide to make reinstating DADT a goal, they would still have the rather difficult task of selling that agenda. After a year or more of DADT being gone, absent some evident breakdown (which is rather unlikely) they have no basis for reinstatement other than anti-gay bigotry.

And there are people in the Republican Party who are wise enough to know that outright anti-gay bigotry will lose votes in this century. In fact, I believe that if the Party were to attempt to reinstate DADT that it would literally destroy the party. I don’t think that it could survive being so strongly associated with an effort that most Americans see as discrimination.

Marriage… well that is less definite and leaves room for evolution of thinking. DADT is politically dead.

How many Republicans in the House jumped to endorse Buck McKean and Joe Wilson’s request for delay? Oh, zero.

But it is still possible. Which is why, as Zeke noted, it’s important that LCR continue its lawsuit.

BobN
September 20th, 2011 | LINK

But these are consequences of legal indifference, not the products of active and hostile pursuit.

I think that’s a remarkably naive conclusion. Active hostility is exactly why the U.S. lags behind most of the West in granting gays equality and protections. Politicians are not “indifferent”, it’s just that one party supports us and the other party hates us.

I would also suggest you proceed with caution when you assert that no local or state govt can or would conduct an investigation into the sex life of a U.S. citizen. They can. They do. And in most states, there’s no law to stop them.

Jim Burroway
September 20th, 2011 | LINK

BobN

Please reread that tiny snippet and then go back and look at it in context. (it’s why I post paragraphs, not lone sentences. This isn’t Twitter.) I was careful to specify legal indifference and negligence vs. legal hostility. And that is correct. There is still legal indifference (immigration laws) and legal negligence (DOMA) which ignore or negate the civil rights of gay people. But the law now, with the demise of DOMA, no longer compels any governmental agency to investigate someone’s sexual orientation in order to apply a penalty for having the wrong one.

You are correct that there are hostile politicians and policemen. I did not argue otherwise. Please don’t confuse the distinction. I know it may be a subtle one for some people. But what makes the end of DADT especially noteworthy is that for the entire history of the US, laws have been on the books requiring the active pursuit of gay people. And as of September 20, for the first time on US history, that is no longer the case.

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