---
title: Sexual Orientation
description: >-
 GSS and ANES trends on attitudes toward LGBTQ people -- same-sex relations wrongness,
 same-sex marriage, gay civil liberties, and ANES feeling thermometers / policy items.
---

# Sexual Orientation

If you could choose any time to be born, and you did not know if you would be gay or straight, you would probably not choose 1912.
That's when Alan Turing was born.

Turing was one of the greatest minds of the 20th Century.
In 1936, he defined a theoretical computer called a Turing machine, which he used to prove foundational ideas in computer science.
During World War II, he was central to the British effort to break the German Enigma code.
Historians generally agree that this work shortened the war in Europe by years and saved countless lives.

In 1946, Turing proposed the Automatic Computing Engine (ACE), one of the earliest designs for a stored-program electronic computer.
In 1948, he designed some of the first chess-playing programs.
Although there were no computers at the time that could run the programs, they established some of the earliest principles of artificial intelligence (AI).
In 1950, he proposed what became known as the Turing Test as a way to recognize general AI, if we found a way to build it.
And in 1952, he proposed a model that showed how interacting chemicals could generate stripes, spots, spirals, and other patterns often seen in nature. Years later, biologists found that this model is a good description of the actual processes that produce zebra stripes, leopard spots, and more.

All that is to give you a sense of how productive he was, and to encourage you to imagine what he might have accomplished if he had lived longer.
If he had reached age 80, he would have died in 1992 -- and he would have been alive to work with the first programmable digital computers, the mainframe computers of the 1970s, the supercomputers of the 1980s, and the early internet.

But in 1952, Turing was criminally prosecuted for homosexual acts, which were illegal in Britain. Found guilty, he avoided prison only by accepting a hormonal treatment called "chemical castration" -- he was forced to take a synthetic form of estrogen that was supposed to suppress sexual desire.

In 1954 he died by cyanide poisoning, aged 41.
His death was ruled a suicide, but that conclusion is contested -- relatives of Turing and some historians say that his poisoning was accidental.
But they acknowledge that he was distressed by the effects of the estrogen, the humiliation of his prosecution, the loss of his security clearance, and the social stigma he faced.
Whether these injustices caused his death or not, his prosecution and punishment were a travesty.

In 2009, British prime minister Gordon Brown apologized for "the appalling way [Turing] was treated" and in 2013 Queen Elizabeth II granted him a posthumous pardon.
In 2021 the Bank of England issued a newly designed fifty pound note (bill) featuring an engraving of Alan Turing.

Homosexual conduct is no longer illegal in the United Kingdom.
It was decriminalized in England and Wales in 1967, in Scotland in 1980, and in Northern Ireland in 1982.

In the United States, decriminalization started earlier, but it took longer.
In 1961, Illinois was the first state to repeal its law; Connecticut was second in 1969, followed by 22 more states in the 1970s, three in the 1980s, and seven more in the 1990s.
In 2003, thirteen states still had laws against homosexual conduct when they were invalidated by the Supreme Court on the grounds that they violated the constitutional right of liberty in private, consensual relationships.

If 2003 is later than you expected, that brings us to one of the recurring themes of this book: many civil rights that we take for granted are more recent than we might realize.
You know the Miranda warning police on television read when they arrest someone -- "You have the right to remain silent" and so on?
That only started after the Supreme Court decision in [*Miranda v. Arizona*](https://en.wikipedia.org/wiki/Miranda_v._Arizona), in 1966.
My brother is older than that.

A related theme is that these rights did not come into existence instantly or automatically.
In many cases, they were fought for, state by state, for decades.
We will see several examples where laws were passed or repealed in one state after another before being settled -- eventually but not always finally -- by the Supreme Court.

Regarding the decriminalization of homosexuality, the case that settled it was [*Lawrence v. Texas*](https://en.wikipedia.org/wiki/Lawrence_v._Texas), brought by John Geddes Lawrence and Tyron Garner, who were arrested in 1998 for allegedly violating the "Homosexual Conduct" law in Texas.
With the help of Lambda Legal, a nonprofit organization that advocates for the civil rights of LGBTQ people, they challenged their convictions and took the case all the way to the Supreme Court.
They could have just paid a $200 fine -- instead, they spent five years fighting, and won.
So, that's where civil rights come from.

In this chapter we'll explore changes in public opinion and laws related to homosexuality and gay rights.
We'll use questions from the General Social Survey (GSS) and American National Election Studies (ANES): some are about attitudes; others are about policies.
The results point consistently in the same direction: since the 1990s, homophobia in the United States has declined steeply, and support for gay rights has expanded rapidly.

## Is homosexuality wrong?

We'll start by looking closely at one of the questions where we have the most data and where we see the biggest changes.
The General Social Survey (GSS) asks:

> What about sexual relations between two adults of the same sex -- do you think it is always wrong, almost always wrong, wrong only sometimes, or not wrong at all?

If the wording of a question seems dated -- or loaded -- note that it was written in the early 1970s.
At that time, homosexual conduct was illegal in all but a few states, and a large majority of people thought homosexuality was wrong.
The only question was *how* wrong they thought it was.

The following figure shows the fraction of Americans who chose "always wrong" or "almost always wrong," between 1973 and 2024.

```{figure} figs/gss/homosex/time_model.png
:name: homosex-time-model
:align: left
Time series: percent saying same-sex relations are always or almost always wrong.
```

From the 1970s through the 1980s, about 80% said same-sex relations were wrong.
Now in the 2020s, that share is below 40%.
In the steepest part of the curve, it drops 50 percentage points in 30 years, which is one of the fastest attitude shifts we see in the GSS.

And it is faster than we can explain with generational replacement alone.
The "speed of light" for generational replacement is about one percentage point per year, assuming that 1% of the population dies or ages out of the survey each year, and assuming that *every* old person who exits is replaced by a young adult with an opposing view.

So that raises this question: how much of the difference is generational replacement, and how much is changing minds?

With a repeated survey like the GSS, we can follow each generation to see how it changes over time.
The following figure shows one line for each year of birth, estimating an underlying degree of belief that homosexuality is wrong. 

```{figure} figs/gss/homosex/model10_cohort_trajectories.png
:name: homosex-cohort-trajectories
:align: left
Cohort trajectories: percent always or almost always wrong, one line per birth year.
```

As expected, we see differences between generations *and* changes over time.
Among people born in the 1900s, more than 90% thought homosexuality was wrong. After them, every successive generation is more tolerant than the one before.
Among people born in the 2000s, fewer than 20% agree with their great-grandparents.

And if we follow the lines over time, we can see that they have declined steeply since 1990 -- although it's possible there has been a reversal since 2020.

From this analysis we can decompose the period component (holding the mixture of cohorts constant) and the cohort component (holding the mixture of survey years constant).
Here's the estimated cohort component:

```{figure} figs/gss/homosex/model10_cohort_standardized.png
:name: homosex-cohort-standardized
:align: left
Standardized cohort component, percent always or almost always wrong.
```

Other than a possible plateau among people born in the 1950s, the decline has been consistent and steep.
Now here's the period component after factoring out the cohort component.

```{figure} figs/gss/homosex/model10_period_standardized.png
:name: homosex-period-standardized
:align: left
Standardized period component, percent always or almost always wrong.
```

As expected, we see a substantial change, even after accounting for generational replacement.
But again, there is evidence of a reversal since 2020.

In [Chapter 10 of *Probably Overthinking It*](https://allendowney.github.io/ProbablyOverthinkingIt/progress.html#what-happened-in-1990), I suggested an explanation for the decline during the 1990s: 

* As more gays and lesbians let their sexual orientation be known, more people became aware of gay friends and family. And people who have a gay friend or family member -- and know it -- are [substantially more likely](https://www.pewresearch.org/2007/05/22/fourinten-americans-have-close-friends-or-relatives-who-are-gay/) to hold positive attitudes about homosexuality and to support gay rights.

* At the same time, media depiction of homosexuality was transformed: more celebrities came out, more television shows and movies included gay characters, and importantly, more of those characters were "incidentally gay" -- that is, their sexuality was not their defining characteristic or focus of the plot.

So why has homophobia apparently resurged since 2020?
The answer is not obvious, because the likely causes of the decline have not reversed: the percentage of people who identify as gay or bisexual has [increased](https://news.gallup.com/poll/656708/lgbtq-identification-rises.aspx), and it doesn't seem like media depiction of gay characters has decreased.
Possible explanations for the reversal include:

- Political polarization: Attitudes toward homosexuality may have become more strongly linked to partisan identity and broader culture-war conflicts.

- Changing context of the question: Respondents may increasingly associate a question about homosexuality with newer debates about gender identity and transgender rights.

- Reduced social desirability bias: Some respondents who would previously have concealed negative views may now be more comfortable expressing them.

- Backlash: Rapid social change and LGBTQ advocacy may have prompted a negative reaction.

Of these, I find the first two more plausible; I am more skeptical of the last two.
But that's just my opinion.
As we look at other related questions, we will get a sense of whether this reversal is more general.

## The feeling thermometer

The American National Election Studies (ANES) survey uses a "feeling thermometer" to assess how people feel about various groups, on a 0 to 100 scale.
Here is how the scale is explained to respondents:

> When I read the name of a group, we’d like you to rate it with
what we call a feeling thermometer. Ratings between 50 degrees-100
degrees mean that you feel favorably and warm toward the group; ratings
between 0 and 50 degrees mean that you don’t feel favorably towards the
group and that you don’t care too much for that group. If you don’t
feel particularly warm or cold toward a group you would rate them at 50
degrees.

For most groups, the most common response is 50 degrees, and the average is usually higher than 50 -- that is, most people have positive or neutral feelings about most of the groups.

Starting in 1984, one of the groups they were asked about is "gay men and lesbians, that is, homosexuals".
The following figure shows the percentage who chose 50 or higher on the thermometer -- indicating neutral or warm feelings.

```{figure} figs/anes/VCF0232/time_model.png
:name: vcf0232-time-model
:align: left
Feeling thermometer toward gays and lesbians -- time series (percent neutral to warm).
```

In 1984, about 37% of Americans had neutral or warm feelings.
By 2024 that share was about 85%.
So the long-term trend in the ANES data is consistent with the GSS data, and the speed of the change is comparable, almost 50 percentage points in 40 years.

But what about the reversal? It's hard to say.
The ANES survey is conducted during presidential election years, so we have only one data point after 2020. That point is a dip, but with limited data, it's hard to say whether it's a reversal or not. For what it's worth, the statistical model doesn't take the dip as sufficient evidence for a decline in the underlying level of favorable attitudes.

If we decompose this trend, we see that both the cohort and period components are substantial.
Here's the estimated cohort component:

```{figure} figs/anes/VCF0232/model10_cohort_standardized.png
:name: vcf0232-cohort-standardized
:align: left
Feeling thermometer toward gays and lesbians -- standardized cohort component.
```

Younger cohorts are more likely to give favorable ratings, but the trend might have leveled off after 1980.
And here's the period component.

```{figure} figs/anes/VCF0232/model10_period_standardized.png
:name: vcf0232-period-standardized
:align: left
Feeling thermometer toward gays and lesbians -- standardized period component.
```

The period component is consistently upward, possibly leveling off after 2020.

The questions we've looked at so far pertain to attitudes.
Now let's see what people think about gay rights.

## Civil liberties

Since 1973, the GSS has included a cluster of questions that start with this preamble:

> There are always some people whose ideas are considered bad or dangerous by other people.

Then they ask about one of those people, "a man who admits that he is a homosexual":

* Suppose this admitted homosexual wanted to make a speech in your community. Should he be allowed to speak, or not?

* Should such a person be allowed to teach in a college or university, or not?

* If some people in your community suggested that a book he wrote in favor of homosexuality should be taken out of your public library, would you favor removing this book, or not?

Again with the wording.
If "admitted homosexual" sounds loaded, remember when the question was written.
But also remember that one of the goals of good survey design is to maximize the chance of getting honest answers.
I suspect the reason for that "bad or dangerous" framing is to suggest that there is a range of valid opinions, in the hope that respondents will say what they really think.

For each of these questions, the following figure shows estimated support for the censorious responses -- that is, "such a person" should not be allowed to make a speech or teach in a college, and their book should be removed from the library.

```{figure} figs/_composed/composed_gss_gay_civil_liberties_time_series_period_effect.png
:name: gay-civil-liberties-time-model
:align: left
Gay civil liberties -- time series.
```

When these questions were first asked, about half of Americans thought a homosexual man should not be allowed to teach in college, more than 40% would remove his book from the library, and more than 35% would not allow him to make a speech.
Since then, all of these percentages have declined substantially: in the 2021 data, all three are below 15%.

Again, we can decompose these trends into cohort and period components.
The following figure shows the cohort components.

```{figure} figs/_composed/composed_gss_gay_civil_liberties_cohort_effect.png
:name: gay-civil-liberties-cohort
:align: left
Gay civil liberties -- standardized cohort component.
```

For all three questions, the cohort component is steepest between cohorts born between 1900 and 1950. After that, they drop off more slowly.
And here are the period components.

```{figure} figs/_composed/composed_gss_gay_civil_liberties_period_effect.png
:name: gay-civil-liberties-period
:align: left
Gay civil liberties -- standardized period component.
```

Compared to the cohort components, the period components are more modest, mostly flat or increasing before 1990, then decreasing between 1990 and 2020.
Because these questions were not asked in 2022 and 2024, we can't tell whether the long-term decline has reversed since 2020.

## Civil rights

The American National Election Studies (ANES) includes three questions about gay rights:

* Do you favor or oppose laws to protect homosexuals (gays and lesbians) against job discrimination?

* Do you think homosexuals should be allowed to serve in the United States Armed Forces or don't you think so?

* Do you think gay or lesbian couples … should be legally permitted to adopt children?

For each question, the following figure shows estimated support for gay rights — job-discrimination protection, military service, and adoption by gay couples.

```{figure} figs/_composed/composed_anes_gay_rights_policy_time_series_period_effect.png
:name: anes-gay-rights-time-model
:align: left
ANES gay-rights policy items -- time series.
```

Support for job-discrimination protection rose from about 55% in 1988 to 85% in 2024.
Support for military service rose from about 61% in 1992 to 85% in 2012, when the question was last asked.
Support for adoption rights rose from about 28% in 1992 to 81% in 2024 -- this is the steepest increase of the three, more than 50 percentage points in 32 years.

Here is the estimated cohort component -- that is, the part of the change the statistical model attributes to generational replacement.

```{figure} figs/_composed/composed_anes_gay_rights_policy_cohort_effect.png
:name: anes-gay-rights-cohort
:align: left
ANES gay-rights policy items -- standardized cohort component.
```

Among people born between 1900 and 1990, each generation is more supportive of gay rights than the previous one.
Since then, support for anti-discrimination laws has reversed moderately.
And here's the period component that remains after we control for generational replacement.

```{figure} figs/_composed/composed_anes_gay_rights_policy_period_effect.png
:name: anes-gay-rights-period
:align: left
ANES gay-rights policy items -- standardized period component.
```

The trends of the period components are consistently upward.
For the two questions that were asked in 2024, the rise might have slowed, but it has not reversed.

## Same-sex marriage

Finally, the GSS includes one more question related to gay rights:

> Do you agree or disagree: Homosexual couples should have the right to marry one another.

The following figure shows the percentage who agree or strongly agree -- that is, they support same-sex marriage rights.

```{figure} figs/gss/marsame/time_model.png
:name: marsame-time-model
:align: left
Time series: percent agreeing or strongly agreeing with same-sex marriage rights.
```

When the question was asked in 1988, only about 12% of Americans supported gay marriage.
When they asked again in 2004, support was above 40%, and by 2024 about two thirds supported it.
Since then it has leveled off.

The trend in the cohort component is consistently upward.

```{figure} figs/gss/marsame/model10_cohort_standardized.png
:name: marsame-cohort-standardized
:align: left
Standardized cohort component, percent agree or strongly agree.
```

And there is a substantial increase in the period component as well.

```{figure} figs/gss/marsame/model10_period_standardized.png
:name: marsame-period-standardized
:align: left
Standardized period component, percent agree or strongly agree.
```

Again, the trend might have leveled off since 2020, but it has not reversed.

Of the questions we've considered in this chapter, only the first -- about whether same-sex relations are wrong -- shows a statistically clear reversal since 2020.
Some of the other questions have not been asked after 2020, so we can't know if they have reversed.
For the ones that were asked more recently, some show signs of leveling off.
But as proportions approach 0% or 100%, they tend to level off anyway.
In summary, there is only mixed evidence for a resurgence of homophobia.
And if there has been a reversal in attitudes, it does not carry over to beliefs about gay rights.

## From beliefs to policy

By placing these results on the timeline of gay rights laws, we can see how public opinion aligns (or doesn't) with public policy.

### So, it was already illegal?

In 1988, when the ANES first asked about anti-discrimination laws, support was already above 50%.
But at that time only one state -- Wisconsin -- prohibited job discrimination based on sexual orientation.
In most of the country, employers could legally refuse to hire or promote gay people, and they could fire someone because they were gay.

In 1989, Massachusetts enacted similar protections. And between 1990 and 2020, seventeen more states and the District of Columbia passed similar laws.

But even in 2020, when support for legal protection was above 80%, discrimination was still legal in 31 states.
That year, the Supreme Court's decision in [*Bostock v. Clayton County*](https://en.wikipedia.org/wiki/Bostock_v._Clayton_County) finally extended protections nationwide.

The Court consolidated three cases: Gerald Bostock, a child welfare services coordinator in Clayton County, Georgia, alleged that he was fired after joining a gay recreational softball league; Donald Zarda, a skydiving instructor, alleged that he was fired after telling a customer he was gay; and Aimee Stephens, a funeral director, alleged that she was fired after informing her employer that she intended to live and work as a woman.

In a 6-3 decision, the Court held that "An employer who fires an individual merely for being gay or transgender defies the law."
Notably, the Court did not find that it was illegal to discriminate on the basis of sexual orientation specifically, but rather that "it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex."

In the majority opinion, Justice Neil Gorsuch, who was nominated in 2017 by Donald Trump, explains:

> Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.

The opinion concludes that workplace discrimination based on sexual orientation is a kind of discrimination based on *sex*, which was illegal under the Civil Rights Act of 1964.
By that logic, legal protections for homosexuals should have been in effect for more than fifty years!

### How was the policy? Don't ask

In 1992, support for gays in the military was about 61%.
But at that time, anyone applying to join the armed forces was asked directly about their sexual orientation during the enlistment process.
If an applicant admitted being gay, lesbian, or bisexual -- or stated that they had engaged in homosexual acts -- they were generally rejected.

Also at that time, military personnel could be investigated if they were suspected of being homosexual.
If they admitted that they were gay, or the investigation concluded that they were, they would usually be discharged from service.
In civilian vocabulary, they would be fired from their jobs and evicted from their housing.
To make matters worse, [most of them received less-than-honorable discharges](https://www.cbsnews.com/news/military-gay-lesbian-service-members-denied-honorable-discharges), which means that they were not eligible for some veterans' benefits.

During the 1992 presidential campaign, Bill Clinton promised to allow gay men and lesbians to serve openly.
But once in office, he faced strong opposition from military leadership, including Colin Powell, who was chairman of the Joint Chiefs of Staff, and some members of Congress, notably Senator Sam Nunn, who was chairman of the Armed Services Committee.

The Clinton administration negotiated a compromise that became known as "Don't Ask, Don't Tell" or DADT, enacted in 1993.
Under this policy, recruiters would not ask applicants if they were gay, service members could not disclose that they were gay, and commanders were not supposed to initiate investigations without credible evidence.
But service members could still be discharged for stating they were gay or engaging in homosexual conduct.

In 2008, during his presidential campaign, Barack Obama pledged to repeal DADT.
By then, popular support for gays in the military was above 80%.

In February 2010, Admiral Mike Mullen, then chairman of the Joint Chiefs of Staff, testified before Congress:

> No matter how I look at this issue, I cannot escape being troubled by the fact that we have in place a policy which forces young men and women to lie about who they are in order to defend their fellow citizens.

He concluded, "It is my personal belief that allowing gays and lesbians to serve openly would be the right thing to do."

Coming from the country's highest-ranking military officer, this testimony was influential.
Congress repealed the policy in 2010, allowing open military service to begin in 2011.
By then, public support was almost 85%.

[A 2018 report](https://www.rand.org/pubs/research_briefs/RB9955z6.html) estimates that 5.8% of active-duty service members
identified as gay, lesbian, or bisexual, and 0.6% as transgender.
If the percentages are about the same today, out of [1.3 million service members](https://usafacts.org/articles/how-many-people-are-in-the-us-military-a-demographic-overview/), 
that's 70,000-90,000 LGBTQ people defending their fellow citizens.

### The adoption curve

In 1992, when the ANES asked whether gay couples should be allowed to adopt, only 28% said yes.
But support grew quickly: by 2008 it was above 50%, and in 2024 it was above 80%.

During that time, state laws were all over the map.
In 1993, Vermont and Massachusetts were the first states to recognize adoption rights for same-sex couples -- both through state supreme court decisions.
In the Massachusetts case, called *Adoption of Tammy*, the decision was based on the absence of prohibition: state laws did not prohibit unmarried couples from filing jointly and said nothing about gender or sexual orientation. 
So that's another example, like *Bostock* on employment discrimination, where civil rights were extended based on interpretation of existing law rather than constitutional protection.

New York followed in 1995, New Jersey in 1996, then
California, Connecticut, Illinois, Maryland, New Mexico, Rhode Island, Washington, and several other states between 2000 and 2005.
Over that period, only a few states had explicit bans, but many had policies that prevented gay people, same-sex couples, or unmarried couples from adopting.

In 2010, Florida was the last state where gay people could not adopt, based on a statute saying, "No person eligible to adopt under this statute may adopt if that person is a homosexual."

That statute was enacted in 1977 during the "Save Our Children" campaign led by Anita Bryant.
It was overturned by the Florida Third District Court of Appeal in a case called *In re Gill*, after Frank Martin Gill, who applied to adopt two children he was already raising as a foster parent.

The court found that the ban violated the equal protection guarantees of the Florida Constitution.
Adding salt to the ruling, the court found that there was no "rational basis" for the ban, which means that the statute failed to meet what is considered the lowest legal standard.
The Florida Attorney General chose not to appeal the decision to the Supreme Court of Florida, so it became final.
And Gill's adoption of the two boys became final in January, 2011.

At that point, the matter was all but settled at the state level, but there were no federal protections until a series of Supreme Court decisions: [*Obergefell v. Hodges*](https://en.wikipedia.org/wiki/Obergefell_v._Hodges) in 2015, which established nationwide marriage equality; [*V.L. v. E.L.*](https://en.wikipedia.org/wiki/V.L._v._E.L.) in 2016, which requires states to recognize adoptions granted in other states; and [*Pavan v. Smith*](https://en.wikipedia.org/wiki/Pavan_v._Smith) in 2017, which requires states to extend the same parental recognition to all married couples.

It didn't take long for adoption rights to catch up with public opinion.
In 2008, a majority of Americans thought gay couples should be allowed to adopt.
Nine years later, the law was on their side.

It is also possible that the law changed public opinion.
As more gay couples adopted, more people became aware of children with two mommies or two daddies.
In 2012, about 48% agreed that "same sex female couple can bring up a child as well as a male-female couple", and 44% thought a male couple could, too.
In 2022, those percentages were up to 62% and 59%.
And now that those children and their friends have grown up, they are even more likely to agree — among people born in the 2000s, more than 70%.

### Same-sex marriage

When the GSS first asked about gay marriage in 1988, only about 12% of Americans supported it.

In 1996, the Defense of Marriage Act (DOMA) was passed by Congress and signed by President Bill Clinton.
For purposes of federal law, it defined "marriage" to mean "only a legal union between one man and one woman" and it defined "spouse" to refer "only to a person of the opposite sex".
It also declared that states need not recognize a same-sex marriage performed in another state.

That last provision was preemptive because at the time no states had legalized gay marriage -- Massachusetts became the first eight years later, in 2004.
At that point, support for gay marriage had risen to 45% nationally.

In 2007, it was above 50%, and in 2011, it was closer to 60%.
At that point, the Senate held hearings on a bill, the Respect for Marriage Act, which would repeal the Defense of Marriage Act.
If the names of the bills are confusing, just remember that "defending marriage" means opposition to gay marriage, and "respect for marriage" is the opposite.

In an unusually entertaining hearing about the Respect for Marriage Act, Senator Al Franken questioned a representative of Focus on the Family, a conservative group that argued that children do best when raised by a mother and a father.

> Mr. Minnery, on page eight of your written testimony [...] You cite a Department of Health and Human Services study [...] to support this conclusion. I [pause] checked the study out... [Laughter]

To understand why the audience laughed at that point, you should know that before he was a senator, Al Franken was a comedian who starred on Saturday Night Live. 
As a comedian, he was famous for a deadpan delivery; as a politician, he used that delivery with withering effectiveness.
As Mr. Minnery takes a visibly nervous sip of water, Franken resumes:

> ... and [the study] actually doesn't say what you said it says. It says that nuclear families, not opposite-sex married families, are associated with those positive outcomes. Isn't it true, Mr. Minnery, that a married same-sex couple that has had or adopted kids would fall under the definition of a nuclear family in the study that you cite?

Minnery replies:

> I would think that the study, when it cites nuclear families, would mean a family headed by husband and wife.

With the demeanor of a teacher talking to a slow child, Franken explains.

> It doesn't. [More Laughter] 

Here you might have to [watch the video](https://www.youtube.com/watch?v=318DYr_K8J4) to appreciate the humor.
Franken concludes:

> The study defines a nuclear family as one or more children living with two parents who are married to one another and are each biological or adoptive parents to all the children in the family. And I frankly don't really know how we can trust the rest of your testimony if you are reading studies these ways.

The bill passed the Judiciary Committee, but despite Franken's performance, Democrats did not have the votes to overcome a filibuster on the Senate floor, so the bill never became law.
Instead, the issue was decided by the courts.

In 2013, in [*United States v. Windsor*](https://en.wikipedia.org/wiki/United_States_v._Windsor), the Supreme Court struck down a central part of DOMA.
The case involved Edith Windsor and Thea Spyer, a same-sex couple whose marriage in Canada had been recognized by the state of New York, where they lived. When Spyer died, Windsor inherited her estate, but under DOMA, the IRS did not consider Windsor a "spouse", so she had to pay estate taxes that an opposite-sex spouse would not have owed.

In a 5-4 decision, the Court held that the relevant part of DOMA was unconstitutional "as a deprivation of the liberty of the person protected by the Fifth Amendment". 

The Fifth Amendment might be most famous for protecting a criminal defendant from being "compelled in any criminal case to be a witness against himself" -- hence "taking the Fifth".
But it also contains this prohibition, which is more relevant:

> No person shall [...] be deprived of life, liberty, or property, without due process of law.

Even with that, it might not be clear how we get from the Fifth Amendment to the *Windsor* decision.
If Congress passes a discriminatory federal law, the text of the Fifth Amendment doesn't obviously forbid it.

For that, we need another piece, the Fourteenth Amendment, which includes this requirement:

> nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The key phrase here is "equal protection of the laws", which more clearly applies to *Windsor* -- but the Fourteenth Amendment only restricts the states, not the federal government.

For that, we need one final piece: [*Bolling v. Sharpe*](https://en.wikipedia.org/wiki/Bolling_v._Sharpe), the 1954 companion case to [*Brown v. Board of Education*](https://en.wikipedia.org/wiki/Brown_v._Board_of_Education). The *Brown* decision held that state-sponsored school segregation violated the Fourteenth Amendment. But the segregated schools in *Bolling* were in Washington, D.C., where the schools were controlled by the federal government -- so the Fourteenth did not apply.

Rather than allow the federal government to operate segregated schools, while forbidding the states from doing the same, the Court held that the Fifth Amendment's Due Process Clause prohibits the federal government from engaging in unjustified discrimination. In effect, it took equal protection from the Fourteenth Amendment and applied it to the federal government through the Fifth.
If all of that sounds like a shaky foundation to rest civil rights on, you are understanding my point.

After *Windsor*, the federal government recognized same-sex marriages that were valid under state law, but states were free to decide whether to issue marriage licenses, and 13 still prohibited it.
Then in 2015, in *Obergefell v. Hodges*, the Supreme Court decided that states were required to license same-sex marriages and to recognize marriages from other states.
The lead plaintiff, James Obergefell, married John Arthur in Maryland, where same-sex marriage was legal, but they lived in Ohio, where it was not.
When Arthur died, Ohio did not recognize Obergefell as his surviving spouse.

In the majority opinion, Justice Kennedy invoked the liberty protected by the Due Process Clause and the equality protected by the Equal Protection Clause -- both directly from the Fourteenth Amendment, with no detour through the Fifth.

*Obergefell* might be on more solid ground than *Windsor*, but even so, in 2022 Congress took up a new Respect for Marriage Act, which repealed the remaining provisions of DOMA -- it required federal recognition of same-sex marriages, and required states to recognize marriages performed in other states.
It passed with substantial bipartisan support and was signed by President Joe Biden.

## Where do civil rights come from?

Tracing the history of these civil rights is like a lesson in federalism, constitutional law, and the checks and balances of the three branches of government.

* The prohibition on workplace discrimination started with state laws, and was later affirmed by the Supreme Court, based on a law passed by Congress.

* In the case of gays in the military, the initiative came from the president as Commander in Chief of the armed forces, but it was enacted by Congress.

* Adoption rights were established first by state supreme courts and then by the Supreme Court of the United States.

* The right to marry was recognized first by state legislatures, then by the Supreme Court, and then made law by Congress.

Each of these stories followed a different path through the state and federal governments -- what they have in common is that public opinion led the way.
In theory, civil rights are not supposed to depend on public opinion. In the *Obergefell* decision, Justice Kennedy says so:

> The idea of the Constitution “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” This is why “fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

The quotations Kennedy included are from the decision of a 1943 case, written by Justice Robert H. Jackson -- not the most widely known Supreme Court justice, but among legal scholars he is recognized as one of the most quotable.

Ideally, fundamental rights should be "beyond the reach of majorities", but the examples in this chapter suggest that reality is not so ideal.

When Bill Clinton promised to repeal the ban on gays in the military, he might have been guided by respect for the Bill of Rights -- but you don't get the nickname "Slick Willy" by acting on principle.
More likely, he believed that his promise was popular enough that it would earn more votes than it would lose.

When members of Congress voted for the Defense of Marriage Act in 1996, they probably believed that the majority of their constituents were opposed to gay marriage.
And they were right -- fewer than 40% supported gay marriage at the time.
Then when they repealed it in 2022, they probably knew that their constituents had changed their minds -- support was above 60%.

In the 2022 Senate vote, there were [eight Senators](https://www.axios.com/2022/12/01/senate-vote-same-sex-marriage-defense) who had also voted in the Senate in 1996, and two of them voted for both bills -- that is, first they voted against gay marriage, then they voted for it.
In the House, [13 representatives](https://www.axios.com/2022/07/20/house-gay-marriage-equality-vote) voted for both bills.
Were they being inconsistent?
It's possible that in the 26 intervening years, they had changed their personal views -- based on the data we've seen, it's clear that many people did.
But I think it's as likely that they were faithfully representing the views of their constituents.

In theory, fundamental rights "depend on the outcome of no elections", but in reality, they absolutely do.

## Would you choose now?

How would you like to live in a time where a large majority of your peers think your sexual orientation is "always wrong", "almost always wrong", or at best "wrong only sometimes"?
What if your "sexual conduct" was illegal, so you were vulnerable to arbitrary prosecution and barbaric punishment?
You would be excluded from military service, as a presumed threat to morale, and barred from jobs requiring security clearance, on the assumption that you were vulnerable to manipulation and blackmail.
Even for jobs you were allowed to hold, you might not be hired in the first place and could be fired at any time -- and you would have no legal protection.
And in the most personal matters of family, you would be a second-class citizen, denied basic rights extended to every other citizen.

Or would you rather live now, when large majorities of Americans have positive feelings about homosexuals, and think there's nothing wrong with same-sex relations?
Large majorities also support gay rights, including protection from workplace discrimination and the right to serve in the military, adopt children, and "gay marry".
And those rights are in fact protected by state and federal law, and by Supreme Court decisions that support those laws and discourage their repeal.

Would you choose now? In some of the later chapters, this will be a harder question to answer. But I thought we'd start with an easy one.