Historical Precedence Regarding Rights for Homosexuals?

By: Shauli Bar-On

Written: August 2, 2015

When we as Americans first decided to break away from British ruling, the Declaration of Independence was signed on the infamous date: July 4, 1776.

The most famous line in the document states:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights

It is certainly interesting to see how this declaration has evolved. Specifically, the word “men. The 19th Amendment, passed in 1920 and the Equal Pay Act of 1963 redefined the term to include women, the Civil Rights Act of 1964 and of 1991 added people of color to the definition, and slowly but surely, the LGBT community will be added as well.

The Supreme Court made a historic ruling when it constituted the right for homosexual marriage. As Macklemore said in his song Same Love “… a certificate on paper isn’t gonna solve it all, but it’s a damn good place to start. No law is gonna change us. We have to change us”.

Macklemore is right. “We have to change us.” But a few more laws such as the ones needed to secure workplace equality for the Black community, women, and elders in the marketplace would do no harm.

I’m talking about Age Discrimination in Employment Act of 1967, the Equal Employment Act of 1972, the Rehabilitation Act of 1973, the Black Lung Benefits Act of 1973, the Bankruptcy Reform Act of 1978, the Immigration Reform and Control Act of 1986, and the Americans with Disabilities Act of 1990.

All of these acts made it illegal to make a hiring decision and/or salary offer based on race, gender, age, citizenship, pregnancy, bankruptcy, disabilities, or health. Of course, there are exceptions that concern the safety of the workers. Note that these are Federal Laws and NOT laws that each state can redefine.


Notice how there are no federal laws protecting the LGBT community from discrimination in the job market. Each state can decide if it wants to protect these people’s rights.

Why is it fair that people born with a disability have their rights protected in the entire country,  and people born with a different sexual orientation do NOT have their rights protected everywhere in the US?

Since it is up to each state to decide whether or not discrimination in the job market can take place, a spectrum of tolerance is formed: some states allow protection for all citizens, some for only public employees, and some for no citizens.


It is a clear fact that the majority of United States citizens are “for gay rights”. According to a Pew Research Center study in 2013, 55% of Americans believe homosexual marriage should be legal. And that percentage has only gone up.

Additionally, galup.com published 2012 data on which Americans were in favor of same-sex marriage. Only 56% of Americans ages 55 and up were in favor of gay marriage while a whopping 76% of Americans aged 18-34 were in support. All this data makes it clear: same sex marriage is accepted by the majority and its tolerance will only increase.


History, indeed does repeat itself. Similar comparisons between today’s world and several Acts passed in the 1960’s and onward can be made.

After the United States Civil War ended in 1865, the 14th Amendment to the US Constitution was ratified prohibiting slavery. This can be compared to the Supreme Court ruling in Obergefell v. Hodges.

Following the abolition of slavery, several states passed the Black Code and the Jim Crow Laws. These laws persecuted against African Americans and took away many of their civil rights. Thankfully, we have not seen an enactment of such harsh laws towards the LGBT community.

We have, however, seen discrimination against these people. The first historical example that comes to mind is the early 1990’s “Don’t Ask Don’t Tell” policy in the US Armed Forces. This policy, while it is clearly not as extreme as the Jim Crow Laws, can be compared to the discrimination against the Black community.

US Army members were discharged if their homosexual identity was revealed. In 2011, the Military Readiness Enhancement Act was passed abolishing the “Don’t Ask Don’t Tell” policy.


The LGBT community faces a new obstacle that history is less familiar with: discrimination on the grounds of religious freedom.

Just like every legislation introduced into law, there should be exceptions. The policy protecting LGBT community members from being discriminated against when being hired should follow the same policy as the other acts passed to protect other groups’ rights.

As mentioned in the Civil Rights Act of 1964, the United States’ Bona Fide Occupational Qualifications (BFOQ) clearly outlines when a business May chose NOT to hire a potential employee based on religion, sex, national origin, or age.

In order for an employer to pursue this discrimination, they must prove that ONLY ONE sex, origin, religion, or age group can perform a certain job in a safe and efficient manner and that hiring someone of a different background would erode the business.

There are NO EXCEPTIONS when it comes to race or color of skin and NO EXCEPTIONS when the discrimination is based on customer preference.

In Title II of this same legislation, “private clubs” are given exempts from these laws and from providing service to certain groups. The term “private clubs” is not clearly defined.

“The provisions of this title shall not apply to a private club or other establishment not in fact open to the public, except to the extent that the facilities of such establishment are made available to the customers or patrons of an establishment within the scope of subsection (b).”

Subsection (b) includes hotels or any other lodgings, any restaurant-like area, gasoline stations, any movie theater-like area, or sports arenas.

This means that hotels, restaurants, gas stations, movie theaters, sports arenas, and similar areas MUST give service to all races, skin colors, origin, religions, and age unless they can prove the exception.

Additionally, religious schools ARE entitled to require their students/faculty to be of a certain religion. Again, there are no exceptions when it comes to race, skin color, or customer satisfaction.

Similar to this legislation, an act should be passed outlawing discrimination based on sexual orientation and identity. This act should outline the few instances where a “private club” CAN discriminate against a member of the LGBT community.

One of these, if not the only exception, can be the Church. The Church, arguably, should have the exception to refuse religious service such as wedding location to members of the LGBT community. **Note this article was written before Pope Francis spoke in favor of religious tolerance toward the LGBT community.**

However, caterers should NOT be entitled to refuse service based on sexual orientation and identity. Caterers are NOT “private clubs” — just like how restaurants are not either.


Our politicians need to put their political bias aside and work on a bipartisan bill to clarify this unknown area of the law. There are some laws that each state can enact, but when it comes to something as large as discrimination, it is the Federal Government’s job to set guidelines for the country.

This is not a complex bill. Most of the work has already been done for us in past legislation. All that really needs to be done is change the words from “gender,” “race,” “origin,” “disability,” “origin,” and “age group” to words such as “sexual orientation” and “sexual identity.”

For this plan to work, we cannot welcome stubbornness. Compromise is key to progress. As Thomas Paine said in Common Sense, “to argue with a person who has a renounced the use of reason is like administering medicine to the dead.”


Works Cited

“Civil Rights Article II.” Civil Rights Act 1964. Wake Forest, n.d. Web. 31 July 2015. <http://users.wfu.edu/zulick/341/civilrightsact1964.html&gt;.

“Equal Opportunity Act Exceptions.” Human Rights Commission. Victorian Equal Opportunity, n.d. Web. 31 July 2015. <http://www.humanrightscommission.vic.gov.au/index.php/exceptions-exemptions-and-special-measures/exceptions&gt;.

“Huffington Post.” Work Place Discrimination. N.p., n.d. Web. 31 July 2015. <http://big.assets.huffingtonpost.com/WorkplaceDiscrimination.png&gt;.

Masci, David, and Seth Motel. “5 Facts about Same-Sex Marriage.” Pew Research Center. Pew Research Center, n.d. Web. 1 Aug. 2015. <http://www.pewresearch.org/fact-tank/2015/06/26/same-sex-marriage/&gt;.

Snider, Brett. “Can Your Business Legally Refuse to Serve Gays?” Find Law. N.p., 16 Feb. 2014. Web. 31 July 2015. <http://blogs.findlaw.com/free_enterprise/2014/02/can-your-business-legally-refuse-to-serve-gays.html&gt;.

“Indiana Gov. Pence defends religious objections law: ‘This bill is not about discrimination'”The Chicago Tribune. Retrieved March 26, 2015.

“Thousands march in Indiana to protest law seen targeting gays”. Reuters. March 29, 2015.

“Supreme Court rejects gay marriage appeals from Indiana”WTHR – Indiana’s New Leader. WTHR 13 – Indianapolis. Retrieved October 6, 2014.

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