The American Bar Association’s passage of a resolution calling for the repeal of all laws criminalizing noncommercial sexual conduct between consenting adults represented the organization’s first step in a long internal struggle over support for gay and lesbian rights. The ABA did not support laws against sexual orientation discrimination until it passed a resolution in 1989.

The American Bar Association (ABA) is the American legal profession’s largest national organization. At its annual meeting in August, 1973, the ABA’s house of delegates passed a carefully worded resolution that urged state legislatures to “repeal all laws which classify as criminal conduct any form of noncommercial sexual contact between consenting adults in private, saving only those portions which protect minors or public decorum.” [kw]American Bar Association Calls for Repeal of Laws Against Consensual Sex (Aug., 1973)
[kw]Bar Association Calls for Repeal of Laws Against Consensual Sex, American (Aug., 1973)
[kw]Laws Against Consensual Sex, American Bar Association Calls for Repeal of (Aug., 1973)
[kw]Consensual Sex, American Bar Association Calls for Repeal of Laws Against (Aug., 1973)
[kw]Sex, American Bar Association Calls for Repeal of Laws Against Consensual (Aug., 1973)
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[c]Laws, acts, and legal history;Aug., 1973: American Bar Association Calls for Repeal of Laws Against Consensual Sex[0980]
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[c]Crime;Aug., 1973: American Bar Association Calls for Repeal of Laws Against Consensual Sex[0980]

Many time lines of GLBT history trumpet this rather cryptic and equivocal resolution under such headings as “ABA Recommends Repeal of State Sodomy Laws” or “ABA Urges States to Repeal All Sodomy Laws.” The ABA’s action is often listed in conjunction with the historic 1973 decision of the American Psychiatric Association to declassify homosexuality as a mental illness. However, the ABA’s resolution was much more ambiguous and its impact far more limited.

Although the report of the ABA section that drafted the 1973 resolution focused on the repeal of sodomy laws (in addition to the repeal of laws relating to adultery and fornication), it is not entirely clear whether this focus was evident to all: The word “sodomy” Sodomy laws;American Bar Association never actually appeared in the resolution. Nor was the resolution’s impact very far-ranging. Indeed, it was not even included in the summary of the convention proceedings reported in the ABA Journal.

Moreover, the section’s report made it clear that the purpose of the 1973 resolution was “neither to advocate nor condemn any particular form of sexual activity between consenting adults.” The resolution was based on the Model Penal Code developed by the prestigious American Law Institute American Law Institute (ALI) in 1955 in an effort to modernize state legal codes. In calling for the decriminalization of sodomy laws, the ALI failed to demonstrate any support for homosexual rights. Rather, its recommendation (which passed by a narrow margin) was rooted in concerns that sodomy statutes reflected no valid governmental interest, required intrusive police investigations, were enforced in an arbitrary and discriminatory manner, and undermined public respect for the law because many Americans (both heterosexual and homosexual) engaged in sodomy.

Until 1962, when Illinois became the first state to repeal its statutes, all states had some form of sodomy laws. During the 1970’s, twenty more states repealed their laws. However, the ABA played no active role in these campaigns. Although the ABA would become an advocate of GLBT rights in the 1990’s, during the 1970’s and 1980’s it repeatedly voted down resolutions calling for antidiscrimination laws.

In 1975, two years after the purportedly groundbreaking 1973 resolution, the ABA’s house of delegates voted 158-97 to table a more specific resolution calling for the organization to urge state legislatures to prohibit discrimination based on sexual orientation in employment, housing, and public accommodations. In 1976 an identical resolution was tabled as not being “germane to the purposes of the American Bar Association.” Likewise, in 1980 the ABA’s board of governors refused to support an amendment to the 1952 McCarran-Walter Immigration and Nationality Act. McCarran-Walter Immigration and Nationality Act (1952)[Maccarran Walter];and American Bar Association[American Bar Association] The amendment would have allowed gays and lesbians to enter the United States as out gays and lesbians and obtain citizenship.

In 1983 the ABA’s section of Individual Rights and Responsibilities (IRR), which had sponsored all of these resolutions, created the Committee on the Rights of Gay People. Committee on the Rights of Gay People
Rights of Gay People, Committee on the Dan Bradley, president of the Federal Legal Services Corporation and the nation’s highest-ranking out gay official, served as chair. Despite platform speeches by Bradley and Robert E. Bauman, a conservative Republican who took the occasion to acknowledge his homosexuality publicly, the ABA’s house of delegates again rejected (158-134) a resolution calling for state legislatures to prohibit discrimination based on sexual orientation. The vote followed an emotional debate in which opponents condemned homosexuality as “a crime against nature” that contradicted “fundamental and basic moral laws.”

Meanwhile, the ABA played no role in the pioneering antisodomy and gay-and-lesbian-rights cases brought at the state or national levels by other legal advocates. Despite its 1973 resolution, the ABA did not participate in the historic 1983 conference hosted by the Lambda Legal Defense and Education Fund and the American Civil Liberties Union (ACLU), whose purpose was to develop a national strategy for eradicating sodomy laws. Nor did the ABA participate in the subsequent Ad Hoc Taskforce to Challenge Sodomy Laws. Ad Hoc Taskforce to Challenge Sodomy Laws
Sodomy Laws, Ad Hoc Taskforce to Challenge Similarly, in 1986 the ABA failed to file an amicus curiae (friend of the court) brief opposing Georgia’s sodomy laws in the infamous Bowers v. Hardwick (1986) Bowers v. Hardwick (1986)[Bowers v Hardwick] case, in which the U.S. Supreme Court upheld the constitutionality of sodomy laws.

In July, 1985, after another emotional debate, the ABA’s house of delegates narrowly defeated (161-152) another antidiscrimination resolution, despite the authors having bowed to ABA conservatives by explicitly refusing to endorse homosexuality. The failed resolution stated that the ABA, “consistent with its longstanding opposition to unjust deprivation of civil rights and without approving or endorsing homosexual activity, urges the Federal, state, and local governments” to prohibit discrimination based on sexual orientation.

In 1987, however, the ABA passed a resolution condemning hate crimes based on prejudice against the victim’s race, religion, sexual orientation, or minority status. Then, in 1989, after a lengthy and acrimonious debate (and against the recommendation of its board of governors), the house of delegates finally passed an antidiscrimination resolution. By a vote of 251-121, the ABA called on federal, state, and local governments to “enact legislation, subject to such exceptions as may be appropriate, prohibiting discrimination on the basis of sexual orientation in employment, housing and public accommodations.” Although the resolution did not define what exceptions would be allowed, a background report said the proposal “would not preclude certain standard exceptions frequently found in civil rights legislation,” such as allowing discrimination in the case of owner-occupied rental housing or small companies.

In 1992, the National Gay and Lesbian Law Association National Gay and Lesbian Law Association
Gay and Lesbian Law Association, National (founded in 1988) became an officially affiliated organization with a seat in the ABA’s house of delegates. During the 1990’s the ABA passed several significant resolutions in favor of gay and lesbian rights. These included amending the ABA’s law school standards to prohibit discrimination based on sexual orientation; urging local bar associations to study bias against gays and lesbians in the legal profession; and opposing restrictions on child custody, visitation, and adoption based on sexual orientation. In 2004, the ABA lobbied against the proposed constitutional amendment that would have banned same-gender marriage, although it had not officially endorsed gay and lesbian marriage.

In its amicus curiae brief on behalf of Lawrence v. Texas (2003), Lawrence v. Texas (2003)[Lawrence v Texas] the landmark Texas case in which the Supreme Court finally struck down state sodomy laws as unconstitutional, the ABA proudly presented itself as having been at the forefront of the campaign for GLBT rights. However, the historical record reveals a far more ambivalent story. Activists suffered many defeats before they succeeded in changing the ABA’s official policy and practices. In the end, the ABA’s obscure 1973 resolution represented only a faltering first step, rather than a significant watershed, in the legal establishment’s attitude toward gay and lesbian rights. Indeed, most historical accounts barely mention it. American Bar Association;and consensual sex[consensual sex]
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• Cain, Patricia A. Rainbow Rights: The Role of Lawyers and Courts in the Lesbian and Gay Civil Rights Movement. Cambridge, Mass.: Westview Press, 2000.
• Eskridge, William N. Gaylaw: Challenging the Apartheid of the Closet. Cambridge, Mass.: Harvard University Press, 1999.
• Murdoch, Joyce, and Deb Price. Courting Justice: Gay Men and Lesbians v. the Supreme Court. New York: Basic Books, 2001.
• Rubenstein, William B. Cases and Materials on Sexual Orientation and the Law: Lesbians, Gay Men, and the Law. 2d ed. St. Paul, Minn.: West, 1997.
• _______. Lesbians, Gay Men, and the Law. New York: New Press, 1993.

May 6, 1868: Kertbeny Coins the Terms “Homosexual” and “Heterosexual”

1885: United Kingdom Criminalizes “Gross Indecency”

January 12, 1939: Thompson v. Aldredge Dismisses Sodomy Charges Against Lesbians

September 4, 1957: The Wolfenden Report Calls for Decriminalizing Private Consensual Sex

1961: Illinois Legalizes Consensual Homosexual Sex

January 22, 1973: Roe v. Wade Legalizes Abortion and Extends Privacy Rights

October 18, 1973: Lambda Legal Authorized to Practice Law

November 17, 1975: U.S. Supreme Court Rules in “Crimes Against Nature” Case

1986: Bowers v. Hardwick Upholds State Sodomy Laws

January 1, 1988: Canada Decriminalizes Sex Practices Between Consenting Adults

1992-2006: Indians Struggle to Abolish Sodomy Law

June 26, 2003: U.S. Supreme Court Overturns Texas Sodomy Law