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