The 90's were a pivotal time for gay rights. While LGBTQ people were treated unequally, and often faced violence within their communities, a younger generation began to realize that LGBTQ people were entitled to the same rights as anyone else. While it would take another 20 years or so for those rights to be realized, the 90's were a time when gay rights began to be on the forefront of political conversations.
In 1993, the “Don't Ask, Don't Tell” policy was instituted within the U.S. military, permitting gays to serve in the military but banning homosexual activity. President Clinton's original intention to revoke the prohibition against gays in the military was met with stiff opposition; this compromise, which led to the discharge of thousands of men and women in the armed forces, was the result.
On April 25, an estimated 800,000 to one million people participated in the March on Washington for Lesbian, Gay, and Bi Equal Rights and Liberation. Several events such as art and history exhibits, public service outings and workshops were held throughout Washington, DC leading up the event. Jesse Jackson, RuPaul, Martina Navratilova, and Eartha Kitt were among the speakers and performers at a rally after the march. The march was a response to “Don't Ask Don't Tell”, Amendment 2 in Colorado, and rising hate crimes and ongoing discrimination against the LGBT community.
Speaking of Amendment 2 in Colorado, it sought to deny gays and lesbians protection against discrimination, claiming that such rights were "special rights." The Supreme Court struck it down in 1996, the same year that DOMA came into being. In Romer v. Evans, the Supreme Court stated, “We find nothing special in the protections Amendment 2 withholds. These protections . . . constitute ordinary civil life in a free society.”
The Defense of Marriage Act (DOMA) was enacted in 1996 and defined marriage, at the federal level, as the union of one man to one woman. DOMA was primarily brought about by a fear that if states granted same-sex couples the right to marry, the federal government, and other states would have to honor those marriages. In 1996, this was an idea that didn't sit well with the majority of Congress (it should be noted that Congress was held by a Republican majority at that time). DOMA allowed states to refuse to recognize same-sex marriages granted under the laws of other states. More starkly speaking, until Section 3 of the act was struck down in 2013 by the decision in United States v. Windsor, DOMA effectively barred same-sex married couples from being recognized as "spouses" for the purposes of federal marriage benefits. While DOMA did not bar individual states from recognizing same-sex marriage, it imposed constraints on the benefits that all legally married same-sex couples could receive.
These benefits included insurance benefits for government employees, social security survivors' benefits, immigration assistance, ability to file for joint bankruptcy, and the filing of joint tax returns, financial aid eligibility otherwise available to heterosexual married couples, and other laws that applied to heterosexual married couples. In 2004, a General Accounting Office report looked at all federal statutes and found 1,138 federal laws using terms like “spouse,” “husband,” “wife,” “widow” or “widower,” that treat people differently based on whether or not the federal government recognizes them as married.
In the lead-up to the Windsor decision, the Obama administration stopped defending Section 3 of DOMA in court challenges because the President and the Department of Justice determined that it was clearly unconstitutional. Attorney General Eric Holder notified Congress that the DOJ would no longer argue that Section 3 of DOMA should be upheld in cases challenging it. The President and Attorney General had concluded that laws that discriminate against LGBT people required the application of heightened scrutiny under the Constitution’s Equal Protection guarantee, meaning that courts must presume such laws unconstitutional and strike them down unless there was a very strong justification for the discrimination. The President and Attorney General concluded that DOMA could not survive that test. Although the administration stopped defending DOMA Section 3 in legal cases, it continued enforcing the law until the Windsor decision came out.
Notable Supreme Court Cases: