Original post appeared on the American Constitution Society Blog
As we pause to commemorate the 50th anniversary of the passage of the Civil Rights Act of 1964, one of the most important pieces of legislation ever passed into law, it is a perfect time to look at the many ways it paved the way for the lesbian, gay, bisexual, and transgender (LGBT) community. Not only did passage pave the way for additional pieces of civil rights legislation, including Title II of the Americans with Disabilities Act of 1990 and Title IX of the Education Amendments Act of 1972, but it marked a sizeable shift in the use of the commerce clause. To LGBT movement, however, the Civil Rights Act marked the beginning of the LGBT community’s own fight for equality.
The long march toward LGBT equality gained momentum with Romer v. Evans in 1996, where the Supreme Court held that an amendment to the Colorado state constitution that would forbid the state or its subdivisions from extending legal protections to LGB people violated the Equal Protection Clause. In 2003, in Lawrence v. Texas, the Supreme Court ruled affirmatively for the first time on a due process claim brought by gay claimants that LGBT people “are entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.” And last year’s critical decision in United States v. Windsor changed the whole landscape in the LGBT community’s access to important federal benefits. The Court held that Section 3 of the “Defense of Marriage Act,” which defined marriage as a “union between one man and one woman as husband and wife” for federal purposes, was an unconstitutional infringement on equal protection as applied to the federal government under the Due Process Clause of the Fifth Amendment. Now, LGBT couples have access to more than 1,100 rights, benefits, and obligations previously denied to them.
Each of these cases has served as a vital building block in the fight for equality. These successes have been paralleled with incredible legislative and administrative victories, including the repeal of “Don’t Ask, Don’t Tell,” passage of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, and an LGBT-inclusive Violence Against Women’s Act re-authorization. And yesterday, President Barack Obama signed an important executive order. First, it prohibits federal contractors from discriminating in employment on the basis of sexual orientation or gender identity. Second, it protects federal employees from discrimination on the basis of gender identity. (President Bill Clinton signed an executive order that provided protections with regard to sexual orientation.)
These wins are significant, but there is still much to do in the courts, Congress, and statehouses around the country. For example, a recent HRC study showed that a majority of LGBT Americans remain in the closet. Therefore, until Congress passes and the President signs a law that protects LGBT citizens in the workplace, they will remain fearful of losing their jobs if they publicly acknowledge who they are or who they love.
Luckily, the Civil Rights Act of 1964 is the gift that keeps giving. The law also created the Community Relations Service (CRS), an agency within the Department of Justice that provides confidential mediation, facilitation, training, and consulting services to help communities enhance their ability to independently prevent and resolve future conflicts. CRS was given even greater responsibility under the Shepard/Byrd Act to help prevent and respond to alleged hate crimes. Given that hate crimes against actual or perceived LGBT people are only second to crimes based on actual or perceived race, LGBT advocates are now more than ever grateful for CRS’s continued support to the LGBT community.
Undoubtedly, the list of those who contributed to passage of the Civil Rights Act of 1964—from presidents and a “king,” to Members of Congress, civil rights leaders, and ordinary citizens—is long. But it seems right to end this reflection with the person whose words spurred a nation to action. President John F. Kennedy said: “The heart of the question is whether all Americans are to be afforded equal rights and equal opportunities; whether we are going to treat our fellow Americans as we want to be treated.” The question remains the same. Will we afford all Americans with equal rights, or are we content with a tiered system for our citizenry? The road ahead may be long, but the victory that culminated in passage of the Civil Rights Act gives hope to all communities who are fighting for equality that they, too, will overcome.