A Celebration of Our Victories and a Reminder of the Battles Ahead

by Candelario Saldana, Attorney Guest Writer

As we celebrate Pride Month, we cannot forget about our progress and the work that remains. With Pride Month comes an opportunity to hold governments, companies and individuals accountable and to educate our colleagues, friends and family who are willing to learn to be better allies. We can celebrate and be proud of all we have accomplished while also working hard to make the world a better place for ALL our LGBTQ+ community.

Progress Through Riots and Protests

On the morning of June 28, 1969, police raided the Stonewall Inn and arrested individuals for violating New York’s criminal statute that authorized the arrest of anyone not wearing at least three articles of gender-appropriate clothing (I’ll leave how the statute defined “gender-appropriate” for another piece). However, patrons were tired of the constant police harassment and the social discrimination they faced, and instead of dispersing, they stood up to the police. Drag queens, transgender, gay and lesbian individuals (a majority of whom were Black or brown) stood up for their rights by rioting and protesting for about six days on Christopher St. in New York City — giving birth to the Stonewall Uprising. On the anniversary of the Stonewall Uprising, on June 28, 1970, thousands of people came together and marched on the streets of Manhattan; they marched from the Stonewall Inn to Central Park, in what is known as the “Christopher Street Liberation Day”— and that’s when the modern-day Pride parade began. As they walked through the streets, they chanted, “Say it loud, gay is proud,” a theme that lives on.

Although the modern-day Pride parades can be attributed to the Stonewall Uprising, it is essential to remember that our community has been fighting for our rights much longer. In fact, in an article titled “10 Years Before Stonewall, There Was the Cooper’s Do-nuts Riot”, Moffitt discusses how the first gay uprising in the United States happened ten years before the Stonewall Uprising and on the opposite side of the country, in California. In May 1959, several drag queens, “hustlers,” and transgender women stood up to the police after they began arresting their friends — they threw donuts, coffee and paper plates. After a while, they retreated only to come back with more people. The riot continued for about a day and is considered the first gay uprising in modern history. See also Gay L.A.: A History of Sexual Outlaws, Power Politics and Lipstick Lesbians.

Today, our Pride parades are full of glitter, the rainbow colors are abundant, and organizations and companies that support the LGBTQ+ community march to upbeat music to celebrate everything we’ve achieved and to remind our com-

Legal Eagles: Pride Month

The 1969 Stonewall Riots led to the Pride celebrations of today.

munity that we are proud of who we are. However, Pride parades are also a symbolic protest reminding everyone that we will continue to fight for equality and liberation for all our community. They are also a way to mourn those we have lost (i.e., after the Pulse shooting, participants at various Pride parades wore white clothing and white veils to honor the victims killed — most of them Latinx).

Beyond Pride parades, our community has been protesting for decades including the rallies and protests led by Harvey Milk, widely thought to be the first openly gay elected official; the first National March on Washington for Lesbian and Gay Rights on Oct. 14, 1979; demonstrations in October 1987 in Washington, D.C., to pay homage to AIDS victims, which included the display of the AIDS Memorial Quilt; demonstrations in protest of the U.S. military’s “Don’t Ask, Don’t Tell” policy; protests after the murder (in a Hate Crime) of Matthew Shepard in October 1998; protests across the United States demanding that local, state and federal governments recognize same-sex marriages; the recent protests in support of Black Trans Lives; and recently, on May 24, a rally in Charlotte, N.C. calling on the City of Charlotte to pass or expand their nondiscrimination ordinance now that the part in House Bill 142 that barred North Carolina cities from adopting local nondiscrimination ordinances has sunset as of December 2020.

Change Through the Courts

These protests, rallies and riots have helped us become visible, and this visibility has helped change the minds and hearts of many. This change has also been quite visible in the U.S. Supreme Court (“Court”), which first denied and then affirmed our rights.

One, Inc. v. Olesen, a 1958 Court decision, was one of the first Court cases concerning LGBTQ+ rights. The case involved a publisher associated with the Mattachine Society — one of the country’s first “homophile” groups. The publisher published a magazine titled “One: The Homosexual Magazine,” which is considered the first widely distributed magazine for gay readers in America. The Los Angeles postal authorities seized the magazines, arguing that the publication violated obscenity laws. The publisher argued that the seizure violated their constitutional right to freedom of speech. The Court ruled that speech or material aimed at a homosexual audience was not inherently obscene — a win for our community. In 1972, the Court took on its first case considering marriage equality, Baker v. Nelson. However, not much changed for our community after this case because the Court dismissed it “for want of a substantial federal question.” However, on June 26, 2013 — during Pride Month — the Court decided United States v. Windsor. The case involved Edith Windsor, who had married Thea Spyer in Canada after having been together for 40 years. They lived in New York, which recognized same-sex marriages; however, the federal government did not. When Spyer passed away, the federal government refused to recognize their marriage and taxed Windsor’s inheritance at a higher rate than if a spouse had left the assets. In a 5-4 decision, the Court held that Section 3 of the Defense of Marriage Act of 1996, which denied federal recognition of same-sex marriages, was unconstitutional. In his opinion, Justice Kennedy wrote: “DOMA writes inequality into the entire United States Code” and “The differentiation demeans the couple, whose moral and sexual choices the Constitution protects….”— giving our community another win.

Exactly two years after the Windsor decision, on June 26, 2015 — right before the end of Pride Month — in another 5-4 decision, in Obergefell v. Hodges, the Court ruled that the Fourteenth Amendment required a state to issue marriage licenses to two people of the same sex and to recognize same-sex marriages from states that already licensed and performed same-sex marriages. Once more writing for the majority, Justice Kennedy wrote: “Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons.” This decision, for many, was one of the most important decisions for our LGBTQ+ community — a battle that required millions of dollars.

Beyond marriage, the Court has issued decisions that have had an impact on our sexual lives. For example, in Bowers v. Hardwick, the Court upheld, in a 5-4 decision, Georgia’s sodomy law. Hardwick was caught, in 1982, by Georgia police giving oral sex to another man in the bedroom of his own home. He challenged the constitutionality of the statute; however, the court found that the Fourteenth Amendment did not prevent a state from criminalizing private sexual conduct involving same-sex couples — the court further found that the fact that homosexual conduct occurs in the privacy of the home does not affect the result (citing Stanley v. Georgia, 394 U.S. 557). Later, in 2003, in Lawrence v. Texas, the court overturned Bowers v. Hardwick in a 6-3 decision. Writing the decision for the Court, Justice Kennedy wrote: “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct.” The decision found that sodomy laws that criminalized intimate homosexual behavior violated the due process clause of the Fourteenth Amendment.

Beyond the cases above, the Court has also issued several other opinions, including Romer v. Evans, in 1996, finding that laws singling out LGBTQ people to take away our rights violated the Fourteenth Amendment’s equal protection clause; Boy Scouts of America v. Dale, also a 1996 case, held that private organizations could single out LGBTQ people; Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, in a 7-2 decision, ruled that the government’s actions in assessing the baker’s decision to decline to bake a cake for a same-sex couple’s wedding violated the free exercise clause; and more recently, in 2020, the court issued its decision in Bostock v. Clayton County, ruling that employers cannot discriminate against LGBTQ individuals — Justice Gorsuch, to many people’s surprise, wrote the Court’s majority opinion stating: “An employer who fires an individual merely for being gay or transgender defies the law.” However, the Supreme Court isn’t the only court issuing decisions that affect the lives of LGBTQ+ individuals. Lower courts have also issued opinions that have had an impact on our lives. For example, a recent opinion by the North Carolina Court of Appeals, M.E. v. T.J., held that unmarried same-sex couples could obtain domestic violence