Fifteen Eighty Four

LGBTQ+ rights are under attack around the country. In just the first six months of 2024, state legislators introduced 527 bills targeting the LGBTQ+ community. The situation is so dire that the Human Rights Campaign declared a state of emergency for LGBTQ+ Americans.

            Although these legal attacks are painful and dispiriting, the LGBTQ+ movement’s history is an account of hope, not despair. As I detail in Family Matters: Queer Households and the Half-Century Struggle for Legal Recognition, the law changed—dramatically—in a surprisingly short period of time. Family Matters tells the story of how advocates transformed American law from a regime that criminalized gay and lesbian relationships to one that recognized and affirmed the dignity of queer families.

In the middle of the twentieth century, the outlook for the LGBTQ+ community was bleak. Every state criminalized consensual sodomy. Homosexuality was defined as a mental illness, a classification that prevented gays and lesbians from obtaining federal employment, serving in the military, and securing custody of their children.

The punishments for same-sex sexuality could be extreme, as Bert Chapman learned. In 1940, Michigan police arrested the 35-year-old for being sexually intimate in his home with another man. The court confined him to a psychiatric institution until he “fully and permanently recovered” from his homosexuality. Chapman spent thirty-one years detained in psychiatric institutions because he was gay. He was finally able to secure his release in 1971, after convincing a jury that he was no longer a danger to society. While the extreme nature of Chapman’s ordeal was the exception, not the rule, he was also far from the only gay man who suffered prolonged periods of confinement because of his sexual orientation.

Chapman offers a sobering example of how harsh the law could be. At the same time, his release underscores that American law could and did in fact change. In the criminal law context, states reformed their penal codes first to eliminate punishments for same-sex sexuality, then began imposing harsher penalties for hate crimes against the queer community. The changes to family law were just as significant. Judges began granting custody to lesbian mothers and gay fathers, social workers slowly began placing foster children in the homes of queer adults, and schools increasingly taught students that same-sex sexuality was not inherently harmful.

Over fifty-five years, LGBTQ+ rights advocates changed the legal landscape dramatically. In 2015, when the Supreme Court ruled that the Constitution protected same-sex couples’ right to marry, the decision marked how fundamentally American law and society had changed. By that time, gay men no longer feared being arrested, imprisoned, or institutionalized because of who they were. Lesbians did not live with the constant anxiety of losing their livelihoods if their sexuality became known. Instead, they could overwhelmingly celebrate their relationships with pride.

The crucial actors behind this legal transformation were not just lawyers, legislators, and judges. As often, the central figures were social scientists, business leaders, social workers, police officers, teachers, school board members, and media consultants. These individuals did not necessarily see themselves as agents of legal change. Their efforts nevertheless instigated essential shifts in social perceptions of gays and lesbians, as well as the legal doctrines that shaped their lives. By helping to inspire changes in Americans’ attitudes and law, these non-legal actors helped to make queer family rights possible.

            Tom Brougham serves as a prime example of how consequential ordinary people could be. In 1979, the clerical employee for the City of Berkeley approached his union about obtaining medical and dental coverage for his longtime partner, Barry Warren.  Brougham, who coined the term “domestic partner,” found the city’s refusal to extend benefits to same-sex partners particularly galling given that Berkeley had enacted a sexual orientation antidiscrimination law in 1978. The union agreed with domestic partnership benefits in principle, but it was unwilling to prioritize the issue. Brougham consequently took the issue to the East Bay Gay and Lesbian Democratic Club, which began lobbying for the program. In 1984, the City of Berkeley became the first municipality to offer domestic partner benefits to its employees. Brougham and Warren were the city’s first registrants.

None of this work was easy – and none of the movement’s successes were ever assured. Indeed, when the Supreme Court ruled in favor of marriage equality, gay men and lesbians who had lived through decades of state repression expressed their disbelief at the decision. Many confessed that they never truly expected to see the day when they could marry their love of their lives. Perhaps no one expressed this more effectively than Brougham himself. When he joined the cause in the late 1970s, he had little expectation of success. As he explained, “when we started out, we thought that every stage was almost impossible, but we were going to fight anyway. It turned out none of them were impossible.”

Brougham’s reflection provides a crucial reminder that, even at the darkest moments, positive change can happen. The future is never certain, but the gains of the past should inspire a measure of confidence. When Warren, Brougham’s now-husband, moved to California in 1975, the state still criminalized consensual sodomy. The couple risked imprisonment as felons, as well as institutionalization as sexual psychopaths, simply for expressing their love for one another. Over the course of the following decades, the men endured taunts, insults, and harassment when they fought for their rights. But the law eventually changed. In 2008, the California Supreme Court ruled that same-sex couples had a right to marry under the state’s constitution. Following that decision, the men wed at a small ceremony in their home, then sent an announcement to friends and family. It read: “After a very long engagement, Tom and Barry are married.”

Brougham and Warren should never have had to wait so long to be allowed to legally marry. Yet the hardships the couple endured remind us that the law can change in meaningful ways. The law can be cruel, but advocates can secure reform. As scholars, activists, and the public look to the future, the past may seem irrelevant. It is not. Studying the ways in which advocates secured queer family rights reveals that legal movements can achieve shifts in state and local laws that will help reshape society. Perhaps as importantly, the movement’s history provides hope for the road ahead. As the LGBTQ+ movement continues to fight for rights, advocates’ past successes should reassure minority groups that the law can change society for the better. After all, it already has.