Part III: U.S. Histories
Chapter 5: LGBTQ+ Legal History
Dara J. Silberstein
Learning Objectives
Upon completion of this chapter, students will be able to do the following:
- Describe how people struggle for social justice within historical contexts of inequality.
- Recognize that progress faces resistance and does not follow a linear path.
- Identify key approaches within LGBTQ+ studies, and discuss at least the legal history approach in detail.
Introduction
Historians often face the difficult task of determining how and when to tell the story of certain events, ideas, or people. This is no less true in telling the history of LGBTQ+ law in the United States. It may be surprising to many, but LGBTQ+ laws have a long, storied past and have existed as long as the United States itself. Laws enacted at local and state levels have long been used to regulate acceptable sex and gender norms. For example, in Arresting Dress, Clare Sears writes about the nineteenth-century San Francisco laws that outlawed cross-dressing.[1] These laws and resistance to them tell important stories about how LGBTQ+ practices were regulated. This chapter focuses on some of the key legal doctrines that have been crucial in determining the overall landscape of LGBTQ+ rights in the United States and the Supreme Court’s interpretation of the U.S. Constitution and its application to protecting members of LGBTQ+ communities.
Throughout this chapter it is important to remember that our system of constitutional law is premised on the rights enumerated in the federal constitution being natural rights—that is, rights that are inalienable and preexist our government. What this means is that the Bill of Rights, the first ten amendments to the Constitution, does not grant any rights. Rather, each amendment represents a mandate for the government to not interfere with individual rights or to not prevent others from doing so. For example, the First Amendment right to free speech does not mean that the government has to give you the means to speak, but it cannot interfere with your inalienable right to do so.[2] Crucial to any claim to protected rights is that one must be recognized as human. As anyone who is familiar with U.S. history knows, enslaved African and African Americans were deemed to be chattel (property) and not human, which served to deny them protections as enumerated by these rights. In addition, women, particularly married women, were not recognized as independent citizens and also lacked many of the Constitution’s enumerated rights. Though this egregious thinking would begin to be overturned in the latter half of the nineteenth century, keep it in mind as we survey the rights that eventually applied to members of the LGBTQ+ communities.
Ironically, sexuality, so basic to the human experience, was never mentioned in the original federal constitution or by James Madison, the principal architect of the Bill of Rights. This chapter provides an understanding of the constitution