Stanford Politics

What is the ancestry of struggle for queer peoples in the United States? The recent Supreme Court oral arguments on employment discrimination seem to foreshadow a watershed moment in the United States’ ongoing conflict between queer freedom and religious liberty, which provokes a crisis of memory over the historical circumstances that produced the status quo. Although the mainstream media seems to focus on the recent cases as merely new interpretations of the Civil Rights Act with tangential callbacks to Masterpiece Cakeshop Ltd.v. Colorado Civil Rights Commission, there’s more to these cases than meets the eye. In fact, the dispute at the Supreme Court today adds on to a long history of employment discrimination on the basis of gender and sexuality. Many people struggle to remember the Lavender Scare—the exile of homosexuals from the federal government during the Cold War on grounds of treasonous conduct—which is not only a vital episode of our history but also a reminder that the struggle between queer freedom and religion/morality has remained a constant in conversations on LGBT rights for centuries. The recent cases are not just legal spinoffs of the Civil Rights Act: they’re foils for conservative anxieties over queerness that have always put a standstill on progress. By evaluating how the Lavender Scare informs the present, we can trace the roots of the current employment discrimination cases back to the very moral bedrock of the United States and explore in a historical context why the cases are so divisive. In doing so, these recent cases can shed light on where the present fight for queer freedom stands, how far we’ve come, and what’s left to be accomplished.

The Lavender Scare

When the United States emerged victorious out of World War II, it was no longer a recluse on the international stage that passively observed the foreign chaos abroad. Instead, it was thrust to the forefront of western civilization and joined a pantheon of nation-states—Great Britain and others—tasked with leading the free world. At first, the Americans struggled to make sense out of their newfound hegemony as their European contemporaries waned in influence across the pond, and they hesitated in taking on the dignified pursuit of promoting the ideological authority of the west around the world. However, their paradigmatic authority was not unquestioned: rising to the challenge was their former ally, the Soviet Union, whose unflinching commitment to Marxism-Leninism provided an ideological antagonist for the United States. What confusion the Americans had about their obligation to the free world became quickly clarified: the United States needed to fight the Cold War by espousing its moral superiority in the face of communism.

Although the Cold War is remembered as a contest between capitalism and communism, there were many far-reaching implications for both respective civilizations beyond the question of competing socioeconomic systems—like the seldom-remembered Lavender Scare. As a byproduct of the witch hunts for communists led by Sen. Joseph McCarthy in the 1950s, the Lavender Scare refers to the mass exile of homosexuals from the federal government due to a supposed “threat” to national security. The Lavender Scare began as early as 1947 with President Harry S. Truman’s Executive Order 9835, which provided legal grounds for removing employees on the basis of “disloyalty.” President Truman’s successor, President Dwight D. Eisenhower, passed Executive Order 10450, which further specified that “immoral, or notoriously disgraceful conduct” was grounds for removal from the federal government. As a result, thousands of federal government workers were forced out of employment because their sexuality contradicted the moral-turned-legal standards of the country they served with pride.

Although the Lavender Scare is often understood as the collateral damage of anti-communism writ large, the targeting of homosexuality—or, in McCarthyist terms, “sex perversion”—as a threat to national security actually had more sociocultural significance than simply a pretext for anti-communism. The “immoral, or notoriously disgraceful conduct” of homosexuality was an anxiety that spoke to the postwar demand of national greatness. What moral authority the United States commanded in wake of World War II seemed to be threatened by the sacriligious antagonist of homosexuality. Rep Arthur L. Miller, a contemporary of Sen. McCarthy, says in speech to Congress in 1951 that “it is a known fact that homosexuality goes back to the Orientals, long before the time of Confucius; that the Russians are strong believers in homosexuality.” In citing homosexuality as an identity alien to the west, Rep. Miller and his McCarthyist colleagues responsible for the Lavender Scare feared that homosexuality threatened the United States on the basis of virtue, not national security. Judith Atkins, an archivist at the National Archives and Records Administration, states that “Many assumptions about Communists mirrored common beliefs about homosexuals. Both were thought to be morally weak or psychologically disturbed, both were seen as godless, both purportedly undermined the traditional family, both were assumed to recruit, and both were shadowy figures with a secret subculture.” In sum, the Lavender Scare reflected the urgency the United States felt to uphold moral and religious purity in order to avoid succumbing to the seeming sacrilege of the Soviet Union. The post-World War II anxieties among many Americans provoked a paradigmatic fear over homosexuality and whether queer transgression would collapse the western civilization that the United States was in charge of protecting from similar evils abroad.

The Queer History of the Supreme Court

The sentiment that homosexuality—and queerness writ large—was antagonistic to western civilization seemed to ebb and flow with the brief stints of queer uprising in the latter half of the twentieth century. Decades after the Lavender Scare, the moral uproar stayed dormant until the Supreme Court oversaw landmark cases as of recently in the last few decades that reflected on queerness in a constitutional context with three landmark cases: Lawrence v. Texas, Obergefell v. Hodges, and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.

Although the Supreme Court witnessed countless cases regarding LGBT rights in the past century, the following three appear to be the most culturally significant to the alleged moral deterioration of the country. Lawrence v. Texas—a 2003 case where police officers accidentally encountered a homosexual couple having sex and arrested them—ruled that the criminalization of homosexual conduct violated the Fourteenth Amendment. Obergefell v. Hodges—a 2015 case regarding same-sex couples who sued their state governments for their bans on same-sex marriage—ruled that the Due Process Clause of the Fourteenth Amendment guaranteed the right to marriage for same-sex couples. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission—a 2017 case involving a bakery that refused service to a homosexual couple on religious grounds—ruled that forcing a business owner to conduct business with a homosexual couple was a violation of the business owners’ free exercise of religion.

The cases were met with hostility by social conservatives, who feared a dissociation between the judiciary and the moral obligation “inherent” within laws. After the Lawrence v. Texas ruling, Jonathan F. Cohn, an appellate lawyer in Washington, D.C., states in his National Review article: “Our Founding Fathers did not fight the Revolutionary War over a right to homosexual sodomy … To many, the most troubling aspect of the Supreme Court’s decision is the conclusion that public morality is an insufficient basis to sustain a law.” The “moral obligation” in question was intimately tied to the moral teachings of religion, which seemed to run counter to queer freedom in the three legal disputes in question. Although old anxieties over the immoral conduct of homosexuality were replaced by new anxieties over religious liberty, the underlying thesis remained: queer freedom was fundamentally incompatible with the moral substratum of the United States, which was deeply informed and occupied by religion.

The Newest Struggle

The three landmark cases of the last three decades set the stage for the recent Supreme Court episode, which is another triad of cases: Altitude Express Inc. v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC. Although separate, they all concern the question of whether federal prohibitions on sex discrimination are broad enough to cover employment discrimination. Each case involves people who were fired from their jobs due to their gender or sexuality: Donald Zarda and Gerald Bostock are gay, and Aimee Stephens is a transgender woman. Earlier in the month, the Supreme Court heard oral arguments for the three cases and began what may be a set of landmark cases for queer freedom and religious liberty alike.

Although Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission displayed the fallibility of religious liberty in the Supreme Court, the new conservative majority seems to be a major setback for queer peoples. Yuvraj Joshi, a fellow at Lambda Legal, states that Neil Gorsuch is “more religiously motivated than perhaps even the staunchest religious conservatives sitting on the Court today.” Andrew Seidel, an attorney at the Freedom From Religion Foundation, states that Brett Kavanaugh “will shift the high court dramatically to the right, most noticeably when it comes to religion.” Joshi and Seidel, both committed to the judicial liberation of queer peoples in the United States, form the common consensus of the left regarding the responsiveness of the conservative majority to the concerns of gay and transgender people. Not only are the triad of cases facing a conservative majority, but a religious majority as well, which might prove fatal for any hopes of a progressive victory.

To the religious right, a reclamation of religious liberty (and a broader return to the moral concerns expressed in the Lavender Scare) is taking place in the Supreme Court. Kelly Shackelford, the CEO of the Liberty Institute, says in FOX News that “The vision of religious freedom imagined by our Founders and enshrined in our Constitution may soon be restored in America.” Rep. Louie Gohmert, congressman from Texas, states that “we’ve gotten away from teaching morality, right and wrong” and that “the left wants … such obscurity for right and wrong that it will create chaos.” Much like the sentiments offered on previous cases, Shackelford and Gohmert foresee a zero-sum game in the heart and soul of the country between queer freedom and religious liberty, and they’re more than eager to pick up where their conservative predecessors from the Lavender Scare left off in terms of staking claim to the United States as a country governed by the moral standards of religion.

Despite the odds being stacked against queer peoples in the conservative majority and their fervent backing by the religious right, the left is unwilling to back down without a fight. Chase Strangio—the Deputy Director for Transgender Justice at the American Civil Liberties Union—states: “the work doesn’t stop now; and no matter the outcome, this is all just a part of the long fight for justice. Win or lose we will keep fighting to ensure that no person faces discrimination or violence because of who they are.” Much like their conservative counterparts, Strangio also recognizes the rudimentary implications of the three cases on the queer and religious futures of the United States and whether they can coexist after decades of collisions in the Supreme Court. Strangio appeals to a different definition of freedom also inherent to the free world—the freedom from persecution that the United States fought the Cold War to preserve—which suggests that the three cases in the Supreme Court are not just about who can or can’t be employed, but whether the United States can truly live up to their everlasting promise of freedom for all.

The three cases also arrive at the precipice of President Trump’s first term, which saw the rollback of countless protections for queer peoples enacted by former President Barack Obama. Specifically, the Trump administration rolled back policies pertaining to homeless shelters, healthcare coverage, military service, and bathroom usage, as well as allowing for several exemptions that allow gay and transgender people to be denied service based on religious grounds, which runs as an executive parallel to the cases being heard in the Supreme Court. Over the course of a few years, President Trump and his Republican entourage have delivered stunning blows to decades of progress, which raises the stakes for the current battle in the Supreme Court. If the conservative majority decides in favor of religious liberty, then queer peoples will have little left to work with in terms of making legal demands on the state and fighting for a deserved place in the United States.

Instead, we might face a revival of the Lavender Scare not merely in the federal government but in workplaces around the country. Whereas the Lavender Scare allowed for the gratuitous expulsion of queer peoples from the federal government, a ruling in favor of the religious right may give employers around the country the same liberty to do so. Employment discrimination won’t only affect queer peoples in the workplace, but anyone whom an employer considers out of step with gender norms; not having protections in place allows employers to lawfully define what is permissible conduct on the basis of gender and/or sexuality and fire employees acordingly. Should religion once again become a dictate to deny freedom for queer peoples, the Lavender Scare might find a constitutional basis over a half-century later and continue to exclude us on the grounds that we are different. Despite decades of persistent struggle by our historical antecedents ranging from the Mattachine Society to the Gay Liberation Front, the upcoming decision may provoke questions over how to keep their promise for change alive in the twenty-first century.

Looking Back and Marching Forward

When most people think about queer history, they often mention the 1969 Stonewall Riots, which brought black transgender women into the national spotlight as the figureheads of the Gay Liberation Front in search of a future without gender. Some mention the Mattachine Society, a gay rights organization founded in 1950 which largely operated in the shadows due to the pervasive McCarthyist sentiments at the time. I recalled the Lavender Scare, where countless federal government workers were fired from their jobs on grounds that their sexualities were antithetical to what the United States stood for. Regardless of where our revolutionary history begins, what can be agreed upon is that they all lead to today. At the highest court in the land, the triad of cases regarding employment discrimination have the potential to be historic in determining whether the law provides gay and transgender people the freedom they’re long overdue for or upholds the moral obligation “inherent” within the constitutional footing of the United States. Much like the turning point the United States encountered after winning the Second World War, the United States once again is facing an existential conundrum. In the Supreme Court, the Lavender Scare resurfaced from dormancy to scrutinize queerness in an attempt to shield the basic premises of western civilization from decay. Although much progress has been achieved in the half-century following the Lavender Scare, there is still much progress to be won, and the moral panic that expunged homosexual federal government workers now haunts their twenty-first century successors. No longer does the national threat rest merely in the homosexuals who worked in the federal government; instead it is found in bedrooms, weddings, bakeries, workplaces, and the countless other places gay and transgender people inhabit. However, the triad of cases also signal a willingness to fight among queer peoples. Much like the demand to be great facing the United States after World War II, queer peoples must look backward to learn from our radical ancestors while marching forward to preserve their struggle. Today, they’re no longer defenseless like their forerunners were during the Lavender Scare; instead, they’re knocking at the door of the Supreme Court.

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Beatrice Phi, a freshman, is a staff writer for Stanford Politics.