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What Makes Monday’s Gay Rights Ruling So Historic

Inspired by the civil rights movement, it was decades in the making.

A rally at the Stonewall Inn in New York on Monday to celebrate the Supreme Court decision to uphold L.B.G.T.Q. rights.Credit...Bryan R Smith/Reuters

Mr. Kaiser is the author or “The Gay Metropolis, The Landmark History of Gay Life in America.”

More quickly and more permanently than any other American institution, the United States Supreme Court has the capacity to set the tone for the treatment of any minority group, often for decades to come. It was a string of Supreme Court cases that transformed the status of black Americans, for example, most famously in Brown v. Board of Education in 1954.

The L.G.B.T.Q. legal establishment has spent the last generation following the model set by the black civil rights movement in the 1950s and ’60s. And it worked: The last 25 years have been a period of extraordinary progress for the rights of gays and lesbians and transgender people in America.

A series of Supreme Court decisions — striking down laws prohibiting sodomy, invalidating that part of the Defense of Marriage Act that defined marriage as exclusively between a man and a woman, and finally, the opinion that made marriage equality the law of the land — were extraordinary achievements for a movement that only came to the broad public consciousness after the Stonewall Riots in NewYork in 1969.

All of those decisions, however, were written by Justice Anthony Kennedy. Not only did Mr. Kennedy retire in 2018, but President Trump used the resulting vacancy to solidify the court’s conservative majority with Brett M. Kavanaugh, having previously added Neil Gorsuch as well. Combine that with the administration’s relentless assault on L.G.B.T.Q. rights — which began with a 2017 presidential tweet ordering the Pentagon to discharge all transgender service members and continued through last Friday with a new Health and Human Services regulation that would strip trans people of all the protections of the Affordable Care Act — and it’s clear why practically all of the movement’s progress suddenly seemed in jeopardy.

That’s what made the Supreme Court decision on Monday in three cases so momentous. The ruling made clear that the current Supreme Court would continue to affirm that certain rights for L.G.B.T.Q. people to life, liberty and the pursuit of happiness are indeed as unalienable as everyone else’s. (Many legal experts believe the decision would also lead other courts to invalidate the newest H.H.S. regulation — and perhaps the new Pentagon rules as well.)

All three cases challenged the right to fire employees simply because they are gay or lesbian or trans. Associate Justice Gorsuch and Chief Justice Roberts joined the four progressive justices to change the cultural landscape, simply by affirming one of the most fundamental American legal principles: the only thing that should control the court’s decisions are the words on the page as Congress wrote them.

That core conviction made it possible for Justice Gorsuch to decide that it was irrelevant that no one in Congress was thinking about discrimination against L.G.B.T.Q. people when it passed the Civil Rights Act of 1964, which prohibited job discrimination on the basis of “sex.”

As Carl Charles, a lawyer with the Lambda Legal Defense and Education Fund, explained to me, Justice Gorsuch ruled that “the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefits.”

It has been a long time coming. Job discrimination against homosexuals was first enshrined by an executive order signed by President Dwight Eisenhower in 1953, which prohibited their employment by the federal government and federal contractors. Back then this position seemed so self-evident that not even the American Civil Liberties Union challenged its wisdom. In 1957 the American Civil Liberties Union declared that it was not within its “province” to “evaluate the social validity of laws aimed at the suppression or elimination of homosexuals.”

The move to overturn such deeply entrenched discrimination began almost immediately. Frank Kameny, a Harvard-trained astronomer, was hired by the Army Map Service in 1957 — then fired, a few months later, when the Army discovered he had been arrested on a morals charge in San Francisco.

Kameny became the first gay federal employee to openly challenge the government’s policy. In a brief he submitted to the Supreme Court in 1961, he described the rules banning homosexuals from federal employment as “a stench in the nostrils of decent people, an offense against morality, an abandonment of reason, an affront to human dignity, an improper restraint upon proper freedom and liberty, a disgrace to any civilized society, and a violation of all that this nation stands for.”

The Court ruled against Kameny. But he had discovered his life’s purpose: He became the intellectual father of the modern L.G.B.T.Q. rights movement. As recounted in a newly published biography of Kameny, “The Deviant’s War,” he was the first person to convince homosexuals that just because they were gay did not mean they were sick. Then he got the A.C.L.U. to change its position. Eventually he led the fight to persuade the American Psychiatric Association to remove homosexuality from its list of disorders in 1973 — a victory that helped make all of the movement’s subsequent progress possible.

It would take another 23 years before the Supreme Court would issue its first important pro-gay decision, Romer v. Evans, in which Justice Kennedy led a six-to-three majority to throw out a Colorado state constitutional initiative stripping gay people of anti-discrimination protection. But that ruling didn’t end discrimination for gay people — “it just stopped the right to take it away,” said Matt Coles, who led the gay rights project at the A.C.L.U. for 15 years.

For all the recent progress, practically the entire L.G.B.T.Q. establishment had braced itself for Monday’s decision. The conservative tilt of the court, and the recent spate of anti-L.G.B.T.Q. moves by the Trump administration, made the worst seem inevitable. So there is jubilation over Monday’s decision, unlike anything since Barack Obama’s White House was lit up in rainbow colors after the Supreme Court ruled in favor of marriage equality in 2015.

“We won because Black and Brown trans people fought and died for us to live and fight,” Chase Strangio, a lawyer who represented one of the clients in Monday’s cases, tweeted after the court’s decision. “The words that we crafted. And fought for. In the middle of the night. Through so many drafts. Are in this opinion. The words of trans lawyers. The words of Black queer women lawyers. Our words.”

Charles Kaiser is the author of “The Gay Metropolis, The Landmark History of Gay Life in America.” He directs the L.G.B.T.Q. Policy Center at Hunter College.

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