"Sodomy was a criminal offense at common law and was forbidden by the laws of the original thirteen states when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but five of the thirty-seven States in the Union had criminal sodomy laws. In fact, until 1961, all fifty States outlawed sodomy..." (Rubenstein, 134)

Thus, offering civil protections to people who engaged in criminal behavior was not to be found on the government's agenda.

     It was not until the gay political movement began around twenty-five years ago, that the public image of the homosexual was challenged. The demands for equal rights from the gay community stimulated academic research on the causes of and variation in sexual orientation. These academic studies usually reinforced the Kinsey studies of 1948 and 1953, showing that homosexuals made up a significant portion of the population. In 1974, the American Psychiatric Association, lobbied by the National Gay and Lesbian Task Force, declassified homosexuality as a disease.

     More recent studies are further changing the public image of sexual orientation to a state that is unchosen and unchangeable. In other words, the public image is changing from people who chose to do immoral deeds, to people attracted to the same gender who do deeds that are natural to them.

     Again, the current public policy on civil protection for gays and lesbians is mixed. This seems to be because the original public policy was that there would be no civil protections specifically for gay people. But the gay political movement has made incremental changes to gain a protection here and there (e.g. gaining protection against discrimination in employment in eight states). These incremental changes have created an inconsistent policy in which it is okay to discriminate against gay people sometimes, and at other times it is not.

     There have been efforts to provide consistency by passing a Gay and Lesbian Civil Rights Bill through Congress. One is still being considered by Congress, but Congress is the institution providing the most resistance to legislative change. A quote by U.S. Representative F. James Sensenbrenner (R-Wisconsin) may show the basis for this resistance:

	"I spent 9 years as the ranking Republican member of the Civil Rights Subcommittee of the House Judiciary Committee, and I have had a say in the shaping of the civil rights laws that have been crafted by Congress over the better part of the last decade.
	"I have never favored the inclusion of sexual orientation in civil rights laws...our civil rights laws have protected people based upon status that they really have no control of...sexual activity, however, is voluntary...and we never have extended the protection of civil rights laws to activity that is voluntary and at the choice of the individual..." (Bias Crimes, 167)

     The President, on the other hand, has already made a note of public record, his support for gay and lesbian civil rights. During the '92 Campaign, the following question was posed to the then Governor Clinton over the Internet. "Will President Clinton push legislation forbidding discrimination against gays and lesbians in employment and housing and, if so, when?" Governor Clinton replied:

"I abhor discrimination of any kind, and if I am elected President, I will issue executive orders to repeal the ban on gays and lesbians from military or foreign service and to prohibit discrimination in federal employment, federal contracts and government services. My administration will also support a federal gay civil rights bill..."

     To answer how the stand of providing no protection to gays became public policy is as difficult as asking how the policy of racial discrimination or sexism came about. It was part of a political culture that predated the current regime and remained constant through the generations until it was challenged. However, the existing civil protections, which created the current mixed policy and which occurred much more recently, is a little easier to track.

     The gay political movement is said to have begun with the Stonewall Riots on June 27, 1969 in New York. New York City police made a routine raid on a gay bar (The Stonewall Inn), allegedly looking for violations of alcohol control laws,

"they made the usual homophobic comments and then, after checking identification, threw the customers out of the bar...Instead of quietly slipping into the night, as gay men and lesbians had done for years, they remained on the scene...they held their ground against the police and, in fact, fought back...For three days, people protested. And for the first time, after innumerable years of oppression, the chant rang out, Gay Power!" (Stonewall 25 Committee)

     Once the gay political movement began, the policy of providing no civil protection for gay people was challenged, and has been changing incrementally (and becoming more inconsistent), ever since.

POLICY EXAMPLES

     To be more specific and to focus on the federal level, I want to briefly look at three instances concerning the policy of providing civil protection for gays: [1] the Bowers v. Hardwick (1986) case (policy contribution from the U.S. Supreme Court); [2] hate crime legislation (1990, 1992) (policy contribution from the U.S. Congress); and [3] the ban on gays serving in the military (1993) (policy contribution from the President and the federal bureaucracy).

     Before I delve into these instances, it is instantly obvious that those who promulgated the policy of providing/not providing civil protection to gays are from all parts of the federal government. As Anderson had noted, a public policy is not just one act, but a pattern of actions, and the policy of civil protection for gays is still on the institutional agenda both horizontally (in all branches) and vertically (at federal, state and local levels).

1986: BOWERS V. HARDWICK

     The Bowers v. Hardwick (1986) U.S. Supreme Court case, was the ruling which upheld the right of states to outlaw homosexual sodomy. The obvious question is, what do sodomy laws have to do with civil rights? In the case of gay civil rights, it has everything to do with civil rights.

     Because gay people are so closely identified with their sex acts, the main legal basis for discrimination against them are the sodomy laws. For example, you cannot be X, because by identifying yourself as a homosexual, you have admitted to having committed illegal activity, or you plan to commit such activity in the future.

     And, as this Supreme Court case showed, many judges equate the fact that the founding colonies had sodomy laws, with the conclusion that due process and the right to privacy may be dismissed when dealing with issues relating to homosexuals. Note the following statements from the majority opinion in this case:

	"respondent asserts that there must be a rational basis for the law and that there is none in this case other than the presumed belief of a majority of the electorate in Georgia...The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed." - Justice White (Rubenstein, 135)
	"Respondent, however, asserts that the result should be different where the homosexual conduct occurs in the privacy of the home...Stanley did protect conduct that would not have been protected outside the home, and it partially protected outside the home, and it partially prevented the enforcement of state obscenity laws; but the decision was firmly grounded in the First Amendment. The right pressed upon us here has no similar support in the text of the Constitution, and it does not qualify for recognition under the prevailing principles for construing the Fourteenth Amendment." - Justice White (Rubenstein, 134-135)
	"To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching." - Justice Burger (Rubenstein, 136)
	"there is no fundamental right - i.e., no substantive right under the due process clause - such as that claimed by respondent Hardwick, and found to exist by the Court of Appeals." - Justice Powell (Rubenstein, 136)

     In the 5-4 vote (which, according to the Rubenstein case study, was initially decided the other way), the minority opinion pointed out that the case was no more about a fundamental right to engage in sodomy than the Stanley v. Georgia (1969) was about a fundamental right to watch obscene movies. "Rather, this case is about 'the most comprehensive of rights and the right most valued by civilized men,' namely, 'the right to be let alone'" (Rubenstein, 136- 37). It

	"is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." - Justice Blackman, et al. (Rubenstein, 137)
	"our prior cases thus establish that a State may not prohibit sodomy within 'the sacred precincts of marital bedrooms'...the State must assume the burden of justifying a selective application of its law...there must be a reason why the State may be permitted to apply a generally applicable law to certain persons that it does not apply to others." - Justice Stevens, et al. (Rubenstein, 146-147)

     In short, the minority opinion was that, by upholding sodomy laws, the court was violating the rights to privacy and due process of homosexuals. Four years later, Justice Powell (the "swing-vote"), according to the Washington Post, stated during a speech at NYU, that he regretted his 1986 vote to uphold the Georgia sodomy law, but "so far as I'm concerned it's just a part of my past and not very important" (Rubenstein, 149).

     The Bowers v. Hardwick decision greatly effected the policy of providing civil protection for gays and lesbians. During testimony at a hearing on anti-gay violence, this case was mentioned: "This ruling has created an enhanced sense of official sanctioning of the persecution and violence towards gay and lesbian persons regardless of whether or not their own jurisdiction has a sodomy statue" (Anti-Gay Violence, 220).

     An American Psychological Association report on "Violence Against Lesbians and Gay Men" noted that:

"The cultural climate of homophobia was intensified when the Supreme Court recently ruled that states can legally prohibit sexual intimacy between persons of the same sex in the privacy of their own homes. Lesbians and gay men, in other words, can be declared criminals simply for sexually expressing love for their partners. It is not difficult to see how such a ruling can be interpreted as legitimating hostility toward gay people." (emphasis mine) (Anti-Gay Violence, 103)

     This brings us to an example of how Congress has effected the policy of civil protection for gays - hate-crime legislation.

1990, 1992: HATE-CRIME LEGISLATION

     The study of hate-crimes began with the Hate Crime Statistics Act, Public Law 101-275, signed into law by President George Bush on April 23, 1990. The bill itself did little policy-wise, yet it had great symbolic meaning. According to one author, this was the first bill to place "sexual orientation" among a listing of other minority groups. At the signing ceremony, President Bush stated:

"We join together to celebrate a significant step to help guarantee civil rights for every American: the passage and now the signing of the Hate Crime Statistics Act...I'm signing into law today a measure to require the Attorney General to collect as much information as we can on crimes motivated by religion, race, ethnicity, or sexual orientation - the Hate Crime Statistic Act." (Remarks on Signing, 548)

     As further support of my claim of inconsistency in the policy on civil protection for gays, this very same bill also contains the following phrase:

"Nothing in this section creates a cause of action or a right to bring an action, including an action based on discrimination due to sexual orientation...Nothing in this Act shall be construed, nor shall any funds appropriated to carry out the purpose of the Act be used, to promote or encourage homosexuality." (Hate Crime Statistics Act, Stat. 140, 104)

     Besides specifically NOT providing discrimination protection for gays in this legislation, data collection on crimes committed against gays was either not done, or done inaccurately. During later hearings on hate-crimes (1992), an official from the New York City Gay and Lesbian Anti-Violence Project made the following criticisms:

"we believe that the data collection methods being currently employed are flawed and would seriously undercount the extent of the problem. First of all, police departments are not mandated to report hate crimes, they are only encouraged to do so...Second, there were not enough resources allocated to improve the reporting...Many gay men and lesbians are afraid or unwilling to go to the police. In a study conducted last year by the New York City Human Rights Commission, 73 percent of the incidents reported to them were never reported to the police...Third, most gay men and lesbians have no civil rights protection. So if they report the incident to the police and it becomes public information, they could be fired from their jobs, denied places to live, and ostracized from the communities in which they live just because of their sexual orientation." (emphasis mine) (Bias Crimes, 85)

     Therefore, even though this legislation was aimed at the Attorney General of the U.S. Department of Justice, many flaws are claimed in its administration. "The Uniform Crime Reporting (UCR) Program of the FBI has guided the development and implementation of the national hate crime data collection strategy" (State Uniform Crime Reporting Programs, 1). The FBI developed a two-volume training and collection guide, but noted that "participation in the reporting program is voluntary." Since nothing in the law stated whether data collection would be voluntary, this must have come from interpretation of the law by the Justice Department.

1993: BAN ON MILITARY SERVICE

     Since the topic has moved from Congress to the Bureaucracy, now would seem to be the time to mention the issue of the military ban against gays. Protection against job discrimination is one of the more protected civil rights. It involves not only the EEOC, but also HUD and the Civil Rights Division of the Justice Department. To my knowledge, there is currently no federal level policy prohibiting job discrimination on the basis of sexual orientation. (However, as mentioned earlier, gay people do have job protection in eight states.)

     The issue of the military ban could fill books, but I am using it here only as an instance of the public policy on civil protection for gays. Therefore, my treatment will be brief.

     Although the military ban was not popularly framed as an issue of job discrimination, military service is employment, with pay and benefits like any other job - governmental pay and benefits that gay people, despite individual talents, were prohibited from receiving. Yet, military service is also different, which leads to the concept of the "right to serve" - another right that gays were denied because of their status.

     It is at this point that we begin to see the split between the status of a homosexual (the person) and the sexual conduct of the homosexual. This is an important distinction that I will focus on in my conclusion.

     The military policy used to be active searching out of gay people in the military and discharging them. There was no separation between status and conduct. Yet, before Clinton was elected President, the issue was already on the agenda. In his speech that outlined the new policy on July 19, 1993 before the National Defense University at Fort McNair, Washington, D.C., President Clinton noted that:

"Some of the members of the military returning from the Gulf War announced their homosexuality in order to protest the ban. The military's policy has been questioned in college ROTC programs. Legal challenges have been filed in court, including one that has since succeeded. In 1991, the Secretary of Defense Dick Cheney was asked about reports that the Defense Department spent an alleged $500 million to separate and replace about 17,000 homosexuals from the military service during the 1980s, in spite of the findings of a government report saying there was no reason to believe that they could not serve effectively and with distinction." (Remarks at National Defense University, 1370)

     Thus, the challenge to the ban was well underway before President Clinton even took office. It was the first thing to confront him upon entering office. And, after allowing six months of politicking, the President described the new policy as follows:

	"What I did do was to give instructions to the Secretary of Defense to promulgate a policy which permits gays to serve for the first time and judges them like other servicemen and women on their conduct, not their sexual orientation.
	"That is a big change. They're not going to be asked about their sexual orientation. Their privacy including their rights of association are going to be protected; that is, if they are seen going into a gay bar, that will not lead to an investigation of their sexual orientation...And if a gay person says that he or she is homosexual, while that can create a presumption that they are doing something that is prohibited and lead to their separation from service, they will be given an explicit opportunity to argue that they are honoring the code of conduct." (Remarks on Larry King Live, 1406)

     The separation between conduct and status was almost complete, but the fact that claiming to be a homosexual can cause one to be investigated, is still discrimination based on status (no illegal conduct has been involved). The President stated, "if it were up to me alone, I would say that a person could acknowledge being gay openly, clearly, but say that he or she was completely conforming to the Military Code of Conduct and be able to serve" (Remarks with Wisconsin Press, 1391). But that was lost in compromise, because the President was afraid that "the United States Congress would immediately have reversed it" (Remarks with Wisconsin Press, 1391).

     The implications of this for the policy of civil protection for gays is this: a gay person has the right to serve in the military so long as he does not reveal his orientation. Though this seems like little change, it was change, and it renewed the salience of the issue of gay civil rights. Yet as Congresswoman Patricia Schroeder noted, "gay men and lesbians are both suitable and reliable for military service. The real question is how long the military can maintain a personnel policy based solely on prejudice" (Dyer, 1).

CURRENT POLICY STATUS

     The "don't ask, don't tell" policy has not been extended to the people President Clinton has appointed to federal level positions. Though he has not issued an executive order preventing job discrimination in the federal employment, he has made appointments of openly gay people to high administrative office. For example, he appointed Roberta Achtenberg to be assistant secretary for fair housing and equal opportunity at HUD. And Ms. Achtenberg still, reportedly, marches in gay pride parades. He also appointed Nan Hunter, who was director of the Lesbian and Gay Rights Project for the ACLU, to be Deputy General Counsel at the Department of Health and Human Services.

     Thus, another inconsistency for the policy on civil protections for gays, it is unofficially okay to be openly gay and hold a position in the federal bureaucracy, but it is not okay to be openly gay and hold a position in the military.

     This June marks the 25th anniversary of the Stonewall Riots. The international gay community is going to mark this anniversary by marching on the U.N. to "affirm the human rights of lesbian and gay people" on a global scale (Stonewall 25 Committee). Yet there are other interest groups who want to prevent any more "exceptions" to the policy of no discrimination protection for gays. This November, there are an anticipated eight states that are going to vote on propositions to outlaw discrimination protection for gays. Thus, the policy on civil protection for gays is going to be a hot issue at the state level this year, with the politics being of a pluralist nature -- interest groups battling each other in the court rooms and at the ballot boxes.

     Now, to answer the question "who is influential in affecting the policy", the two big players are the president and the courts. We have a president who took on the military ban against homosexuals, and appointed openly gay people to high administrative office. And, as we had noted in class, civil rights issues usually begin with the courts since they lack majority support. And there is a backlog of gay civil rights issues on court dockets nation-wide, not only challenging the military ban and other employment discrimination, but also challenging the sodomy law and family law. And, despite the Bowers v. Hardwick (1986) case, many of the lower federal courts have ruled in favor of extending civil protections to gays.

     With the court cases, you can bring in the interest groups. Those fighting for gay and lesbian civil rights include: the National Gay and Lesbian Task Force, Lambda Legal Defense Fund, the ACLU, Parents, Families and Friends of Lesbians and Gays, NOW, plus many others. Those groups most often mentioned as fighting against gay civil rights include, Christian Coalition, Concerned Women of America and Focus on the Family. Yet, you cannot stop at the national and interest group level when you want to know who is influential in gay civil rights policy. As the president noted concerning military employment,

"People in this country who are aware of having known homosexuals are far more likely to support lifting the ban...and also to be able to imagine how this ban could be lifted without a destructive impact on group cohesion and morale." (Remarks at National Defense University, 1371)

     When homosexuals are seen as people instead of abstract concepts, a support for civil rights tend to follow. Thus, you cannot answer the question "who is influential" without including the openly-gay individual as well.

     In reference to whether the policy of providing no civil protection for gays is consistent with democratic values, I have to respond with a resounding no. American democratic theory includes the principles of equal protection of the laws because "all men are created equal", therefore, though majority opinion is very important, so is protection of the minority. America is not run by mob rule. Nor is it to base its laws solely on the religious beliefs of one religious group, whether it be the majority religion or not. As was stated in the minority opinion of the Bowers v. Hardwick (1986) case:

"That certain, but by no means all, religious groups condemn the behavior at issue gives the State no license to impose their judgments on the entire citizenry. The legitimacy of secular legislation depends instead on whether the State can advance some justification for its law beyond its conformity to religious doctrine...A State can no more punish private behavior because of religious intolerance than it can punish such behavior because of racial animus." (Rubenstein, 143)

     If you strip away the religious intolerance towards homosexuals (and the resulting legislation), there is no other valid base upon which to base discrimination against them. The only other remaining argument seems to be the argument that prohibiting discrimination against gays is a threat to "family values".

     The concern for "family values" was made very apparent in the Hate Crime Statistic Act of 1990. Right before the phrase that funds could not be used to "promote or encourage homosexuality", the law made the following three observations:

"(1) the American family life is the foundation of American Society, (2) Federal policy should encourage the well-being, financial security, and health of the American family, (3) schools should not de-emphasize the critical value of American family life." (Hate Crime Statistics Act, Stat. 140, 141)

     When asked "isn't the practice of homosexuality a threat to traditional family values", one interest group representative (Bruce Hilton, director of the National Center for Bioethics) responded:

"How, exactly? This...doesn't hold up past the first flush of emotion. What do these rabble rousers have in mind? That if given a chance, so many people would flock to become gay or lesbian that heterosexual families would disappear for lack of interest? Hardly." (Hilton, 53)

     Bruce Hilton then goes on to point out that there are "three kinds of disruption of family values associated with gay people", but the cause is not the homosexual but homophobia.

     If you look at the major players influencing the policy of providing civil protections to gays and lesbians, you can see that political pressures have varying influence. The federal courts do not seem to be influenced by political pressures, as the institution was meant to function. This is not to say that interest groups are not involved, indeed, interest groups, especially those in favor of gay civil rights, are constantly searching for cases to put before the courts to get rulings. But political pressures do not seem to affect the judge's decisions.

     The President and Congress, however, is a different story. For example, the President began with the stand that he was going to issue an order completely lifting the military ban. Then, after six months of political pressuring, he issued the compromise that the military is currently functioning under.

     As for Congress' responsiveness to political pressures, it is a difficult "call" to make. On the one hand, you know that representatives are listing to gay interest groups, because they are introducing gay-favorable legislation, etc. On the other hand, if you look at the actual legislation (e.g. the specific statements of no discrimination protection for gays in the Hate Crime Statistics Act) that is coming out of Congress, you have to wonder if they are not more interested in majority opinion than protecting minority rights.

CONCLUSIONS

     In summarizing the policy on civil protections for gays and lesbians, I believe that by examining the specific instances I have chosen, we will see a trend (and possible an answer to why the policy is not working).

     The most obvious reason why the policy is not working, as I have pointed out many times, is that the policy is inconsistent. Does the government want to provide civil protections to gays or not? There appears to be a battle between the President and federal courts in favor of civil protections, against the Congress and bureaucracy (e.g. military, FBI, etc.) who are hesitant to change. The Supreme Court seems to be a "wild card" that, according to the case study of the Bowers v Hardwick trial, if given another shot at the sodomy law, might strike it down. Yet, the case was so close in 1986, that any predictions about how the Supreme Court would vote on other gay civil right issues would be purely speculative.

     But there is another issue, one that could explain why gay groups are facing so much resistance, and that has to do with the very definition of a homosexual. Starting with the Bowers case in 1986, the Supreme Court was split over what the issue was. The majority opinion noted that the legal history of sodomy laws indicated that legal history did not support certain civil protections for gays. In other words, sodomy and homosexuals were one in the same to the judges. If the colonies outlawed sodomy, they were also outlawing homosexuals.

     The minority opinion however noted that the case was not about the conduct of sodomy, but about the rights of the individual to privacy and due process. The minority were able to separate the action of sodomy from the person who was of homosexual orientation.

     If we jump to 1990 and 1992, the very same issue was raised in Congress during hearings on hate-crimes legislation. As I had quoted Representative Sensenbrenner before, he would not support gay civil rights because he did not believe civil right protections should be extended on the basis of sexual activity which is voluntary. In other words, African-Americans and Hispanics could not choose to be of some other race, but he saw homosexuals as people who could choose to be otherwise by regulating their behavior. Again, conduct and status were the same thing to the representative. Correcting the representative, the testifier stated:

"When people are attacked, and we are talking about hate crimes legislation, they are not being attacked because they are performing a sexual act. They are being attacked because they are perceived to be a member of a specific class of people...They don't even have to be gay or lesbian. It could be two women who are good friends or two men that are good friends walking together." (Bias Crimes, 168)

     And with the military ban on gays, the issue of status and conduct, though partially separated, were still confused. To the military bureaucracy, a statement of being homosexual is equivalent to admitting to conduct that they outlaw (e.g. "don't tell").

     I would argue that such confusion in the actual definition of a homosexual, is the greatest hinderance to gay civil rights policy. And this conceptual problem affects all people involved in the policy process. Legislators, like those involved on the committee researching hate crimes, bureaucrats like the military regime, and even federal judges, when thrown into the gay civil rights arena, will confuse conduct with status. And once a policy maker does this, he will usually rule against treating homosexual people the same way that heterosexual people are treated.

     Yet, as one activist stated, a person no more chooses their orientation than they chose their race or gender. But this confusion between conduct and status persists, largely due to the actions of the religious right who view homosexuality as a lifestyle choice and gay civil rights as anti-family.

     In conclusion, gays and lesbians are largely not protected from discrimination because: (1) the policy on civil protections for gays is inconsistent; and (2) policy makers (and the public in general) have difficulty separating the gay person from his sexual activities.

REFERENCES

_____. 1986. Anti-Gay Violence: Hearing before the Subcommittee on Criminal Justice of the Committee on the Judiciary. 99th Congress, Second Session. Washington, DC: Government Printing Office.

_____. 1992. Bias Crimes: Hearing before the Subcommittee on Crime and Criminal Justice of the Committee on the Judiciary. 102nd Congress, Second Session. Washington, DC: Government Printing Office.

Dyer, Kate (ed.). 1990. Gays in Uniform: The Pentagon's Secret Reports. Boston: Alyson Publications, Inc.

_____. 1990. Hate Crime Statistics Act, Public Law 101-275.

Hilton, Bruce. 1992. Can Homophobia be Cured?. Nashville: Abingdon Press.

_____. 1990. "Remarks on Signing the Hate Crime Statistics Act, April 23, 1990". Public Papers of the Presidents. Washington, DC: Government Printing Office.

_____. 1993. "Remarks by the President on Larry King Live, July 20, 1993". Weekly Compilation of Presidential Documents. Washington, DC: Government Printing Office.

_____. 1993. "Remarks by the President at National Defense University, July 19, 1993". Weekly Compilation of Presidential Documents. Washington, DC: Government Printing Office.

_____. 1993. "Remarks by the President in Satellite Interview with Wisconsin Press, July 20, 1993". Weekly Compilation of Presidential Documents. Washington, DC: Government Printing Office.

Rubenstein, William B. (ed.). 1993. Lesbians, Gay Men, and the Law. New York: The New Press.

The Association of State Uniform Crime Reporting Programs. 1992. Hate Crime Statistics, 1990: A Resource Book. Washington, DC: Government Printing Office.

Stonewall 25 Committee. 1994. Stonewall 25 Georgia. (Brochure advertising the June political marches.)