The 1990s, "Don't Ask, Don't Tell," and DOMA
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, and permitted gays to serve in the military but banned homosexual activity. While President Clinton's intention to revoke the prohibition against gays in the military was originally met with stiff opposition, his compromise led to the discharge of thousands of men and women in the armed forces.
In response to "Don't Ask Don't Tell", Amendment 2 in Colorado, rising hate crimes, and on-going discrimination against the LGBTQ community an estimated 800,000 to one million people participated in the March on Washington for Lesbian, Gay, and Bi Equal Rights and Liberation on April 25, 1993. 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.
Amendment 2 in Colorado sought to deny gays and lesbians protection against discrimination, claiming that such rights were "special rights." The Supreme Court struck it down in 1996 in Romer v. Evans, stating, “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 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. DOMA also made same-sex married couples ineligible for financial aid that was otherwise available 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 was still enforced law until United States v. Windsor declared it unconstitutional in 2003.
Notable Supreme Court Cases: 
- Romer v. Evans, 517 U.S. 620 (1996) - this case held that a state constitutional amendment in Colorado preventing protected status based upon homosexuality or bisexuality did not satisfy the Equal Protection Clause. The state constitutional amendment failed rational basis review.
- United States v. Windsor, 570 U.S. 12 (2013) - in this case, the Court held that Section 3 of DOMA was unconstitutional. Specifically, the Court found DOMA to offend the Constitution because, "By history and tradition the definition and regulation of marriage . . . has been treated as being within the authority and realm of the separate States..."
Selected Library Resources:
- Brett Krutzsch, Dying to be Normal: Gay Martyrs and the Transformation of American Sexual Politics, available as an eBook (2019) through Howard Libraries
- J. Ford Huffman, J. and Tammy S. Schultz, eds., The End of Don't Ask Don't Tell: The Impact in Studies and Personal Essays by Service Members and Veterans, available as an eBook (2012) through Howard Libraries
- William D. Araiza, Animus: A Short Introduction to Bias in the Law (Legal Latin in Practice), KF4764 .A972 2017
- William H. Manz, ed., Defense of Marriage Act: A Legislative History of Public Law 104-199 - HeinOnline
- W. Sherman Rogers, The Constitutionality of the Defense of Marriage Act and State Bans on Same-Sex Marriage: Why They Won't Survive, 54 Howard L.J. 125 (2010). - HeinOnline