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Legacy Project program examines pivotal LGBT Supreme Court cases
by Gretchen Rachel Hammond

This article shared 531 times since Sat Jul 2, 2016
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As part of its Legacy LIVE series, the LGBT educational organization The Legacy Project brought its groundbreaking digitally interactive Legacy Wall to the Center on Halsted the last week of June. Coinciding with the display was a June 29 program with five speakers discussing six significant LGBT-related U.S. Supreme Court cases. The Legacy LIVE series is presented by Legacy Project, Center on Halsted and the Northalsted Business Alliance.

Pride Action Tank Executive Director Kim Hunt moderated the Judgments in June event which included author, LGBTQ history scholar and retired University of Chicago at Illinois ( UIC ) professor Dr. John D'Emilio; Windy City Times Publisher Tracy Baim; Legacy Project Executive Director Victor Salvo; and award-winning Lambda Legal attorney Camilla Taylor.

Together, they charted the history of LGBT challenges and progress at the nation's highest court beginning with ONE, Inc. v. Olesen ( 1958 ), Bowers v. Hardwick ( 1986 ), Romer v. Evans ( 1996 ), Lawrence v. Texas ( 2003 ), The U.S. v. Windsor ( 2013 ) and finally Obergefell v. Hodges ( 2015 ).

According to Hunt, the cases "transformed the movement and our role and visibility in society."

The stories behind the cases served as a visceral representation of how far the community has come in its legal fight for civil rights and how far it has left to go.

Baim had written about the One, Inc. v. Olesen decision in her 2012 book Gay Press, Gay Power: The Growth of LGBT Community Newspapers in America "because it was about early gay media," she said adding that ONE, Inc. was founded from a discussion during a 1952 meeting of the Los Angeles-based Mattachine Society on the need for a magazine.

The August/September 1953 issue of ONE was seized by the Los Angeles Postal Authority and then released three weeks later with no explanation.

"Ironically, on the cover 'Homosexual Marriage' was a headline," Baim said.

The October 1954 issue was seized on charges of being obscene, lewd, lascivious and filthy. It and the 1873 Comstock Law became pivotal in the case before the Supreme Court.

"It took four years of legal rulings for the U.S. Supreme Court to say that it was not in violation of obscenity laws," Baim recalled. "In the pre-internet era, print publications were a part of activism. They were critical tools for the movement."

Baim noted that, during the June 1957 Supreme Court determination on obscenity in Roth v. United States, Justice William Brennan writing for the majority said "that material that has even a modicum of redeeming social value is protected free speech."

"That was key," Baim said. "The Roth test, while vague and inconclusive, was enough to be the basis of a Supreme Court decision in the Olesen case. ONE, Inc. was the first U.S. Supreme Court rule to deal with homosexuality and the first to address free speech rights with respect to homosexuality. The next issue of ONE stated 'for the first time in American publishing history, the decision binding on every court now stands; affirming, in effect, that it is in no way proper to describe two homosexuals as constituting obscenity.' Another writer said that 'it was the day anti-gay censorship died.'"

However, it was only a first-step.

D'Emilio described the Hardwick and Lawrence cases which converged around United States sodomy laws as "profoundly important."

"Both of them had an incredibly powerful impact," he said. "Both led to really significant change. Initially, sodomy was a capital offense. The [laws] continued on the books for over 300 years. They were the foundation for seeing same-sex behavior as fundamentally criminal."

In 1961, Illinois became the first state to repeal its sodomy law.

"Other states followed but by the early 1980s when the Hardwick case has its beginnings there were sodomy laws in half the states," D'Emilio said. Michael Hardwick was arrested in his own home for having sex with an adult male.

In ruling for the constitutionality of Georgia's obscenity law, D'Emilio noted that the language used in the Supreme Court's opinion was "insulting, condemnatory and contemptuous."

He went on to quote that opinion: "To defend sodomy 'we need to cast aside a millennia of moral teaching. Condemnation is early-rooted in Judeo-Christian moral and ethical standards and these laws have ancient writs.'"

D'Emilio added that the same 17-year period passed between the Stonewall uprisings and the Hardwick decision and then the 2003 decision overturning it 6-3 in Lawrence v. Texas.

By contrast, D'Emilio described the language as written by Justice Anthony Kennedy in that decision as "quite exhilarating."

"The petitioners are entitled to respect in their private lives," D'Emilio quoted. "The state cannot demean their existence or control their destiny by making their private sexual conduct a crime. Sodomy laws don't just prohibit a particular sexual act, they have more far-reaching consequences touching upon the most private human conduct."

Similarly far-reaching was the decision reached in Romer v. Evans.

"In 1992, something was happening across the country in that municipalities were passing ordinances protecting LGB people," Salvo said. "The T had not really factored into a lot of people's radar at the time."

Colorado stemmed the tide by voting in an amendment not to "adopt, enact 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 persons or class of persons to claim minority status or claim of discrimination."

"It neutralized the existence of a gay-rights law in Colorado," Salvo said. "It was a horrific instance because all we had were these ordinances."

Richard G. Evans and three other people sued the state to stop the enforcement of the amendment. Salvo described the October 1995 arguments before the Supreme Court as a "nail biter."

"If we had lost this one, it would have wiped out an entire generation of activism," he said. "Not only could we not be protected, the only way any kind of law could ever be written that could protect us was that another amendment would have to be passed in the state constitution to undo the other amendment. We'd never have been able to muster that politically."

The Supreme Court ultimately ruled that the Colorado amendment was based on animus.

"It was a sweeping affirmation of our right to exist and participate in the political process," Salvo said. "It made Lawrence possible and certainly played into Windsor and Obergefell. It was the first time I had ever read in a decision that we could possibly be thought of as a protected class."

The Windsor and Obergefell cases were addressed by Taylor.

"Up until 2010 or so, gay-rights organizations were trying to create precedents for striking down these amendments [banning same-sex marriage] as unconstitutional," she said. "We were really focusing on states. We didn't think it was safe to go to the Supreme Court. There was a concern about victory and the stakes were very high."

However, as one-by-one states struck down their same-sex marriage bans, Taylor said "there began a momentum for trying to take down the Federal Defense of Marriage Act [DOMA] because there were thousands of same-sex couples who were now validly married but had no federal respect for those marriages."

One such person was Edith Windsor who won a 2013 victory in achieving recognition of her marriage to her spouse, who died in 2009.

"The victory in Windsor was striking for the way it framed what had happened to Edith Windsor as depriving her of the ability to be a person," Taylor said, "and talked about the way in which laws that discriminate based on sexual orientation even harmed the children in these families by telling them that there was something unworthy about their families."

She added that it "spurred another wave of litigation."

One of those litigants was Jim Obergefell. Another was Patricia Ewert in Illinois who was present at the Judgment in June event and received enthusiastic applause from the audience when Taylor acknowledged her and her late wife, Vernita Gray.

"The Obergefell victory did a number of interesting things," Taylor said. "The court was really looking at the harm done to individuals by depriving them of the ability to participate freely in society."

However, states like North Carolina have proved that the fight to freely participate in society goes on particularly for the transgender community. The panel looked at the immense numbers of "religious freedom" and anti-LGBT legislation currently being considered nationwide.

"We are in the fight of our lives to push back against this legislation," Taylor said. "Bathroom bills deprive transgender people not only of the ability to use any restroom, but deprive them of recognition as human beings. These are loathsome bills but we anticipate an extraordinary battle."

For more information on The Legacy Project, visit: .

The video playlist below contains multiple videos. Choose Playlist in the top left hand corner to watch videos out of order, if preferred.

This article shared 531 times since Sat Jul 2, 2016
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