Persistent, prevalent, and instrumental

The Mattachine Society was one of the first organizations fighting for gay rights in the 1960s. At the time it was led by Frank Kameny, who was fired from his federal job as an astronomer for being gay. The Mattachine name has been revived by Charles Francis and Pate Felts. They and friends from the law office McDermott Will & Emery documented the systematic anti-gay discrimination by the federal government, starting with the Lavender Scare of the 1950s (part of the McCarthy Red Scare) and on through the 1960s, and 70s. They obtained details through the Freedom of Information Act and turned it into a brief that they submitted to the Supremes as part of the upcoming same-sex marriage case.

There is a reason to go through the effort. One is to document the historical record. Another is to demonstrate anti-equality laws have long been based on hostility, or animus, and that is not permitted as a justification for discriminatory laws.

A reason for the need for the historical record is from Justice John Roberts' dissent in the last big gay case before the Supremes. Roberts claimed there was insufficient evidence of animus, calling it "snippets of legislative history." The brief responds:

For decades, this animus was one of the basic assumptions of American life. It was so persistent, so prevalent, and so instrumental to the way that we structured our institutions, treated our fellow citizens, and organized our lives that, in retrospect, it is often overlooked.

The brief documents this animus, including the language used to describe gay people: “unnatural,” “uniquely nasty,” “immoral,” “deviant,” “pervert[ed],” and an “abomination.”

One of the cases cited was that of William Dew who was fired in 1958. At the time he had a pregnant wife. The reason for his dismissal was he applied to the CIA and as part of the application admitted to experimenting with gay sex many years before. The Supremes agreed to hear the case, which prompted the gov't to settle. But it also prompted the gov't to redouble its efforts to "crush" homosexuals.

The brief's closing argument, explaining why it is appropriate for a same-sex marriage case:

The Dew case is important for another reason as well—one that goes to the heart of the cases now before this Court. For decades, there was no limit to the animus meted out against LGBT Americans and no end to its reach. It poisoned every institution in the United States and seeped into the lives of all Americans, not merely those of gays and lesbians. So too, the language of animus became commonplace among those in the highest positions in government: “homo,” “sexual deviant,” “pervert,” “abomination,” “uniquely nasty,” and other derogatory terms and phrases were used with bureaucratic ease as a way to define, cabin, and limit the citizenship of LGBT Americans. As the Dew case perfectly illustrates, the animus even extended to those who were not gay.

It was the courts—and in the case of Dew, this Court—that ultimately stepped in to set the course right. This Court knows animus when it sees it, and it has a well-established line of cases overturning laws that by their text, background history, and effect, relegate a class of citizens to second-class status. See, e.g., Romer v. Evans, 517 U.S. 620 (1996); Lawrence v. Texas, 539 U.S. 558 (2003); and United States v. Windsor, 133 S. Ct. 2675 (2013). Indeed, this Court has already recognized the long history of discrimination and animus against homosexuals. See, e.g., Lawrence, 539 U.S. at 571.

The newly revealed documents cited herein merely reinforce what this Court already knows. For decades, there was a culture of animus against LGBT Americans that permeated every aspect of American life and every American institution. In many places, that culture continues to this day. To say that the marriage bans now at issue are not somehow the product of this historical animus is to ignore reality. We may not see the air that feeds the flame. But, for decades, animus against LGBT Americans fed the flames of hatred, revulsion, and disgust from which the current marriage bans arose.

One commenter essentially said, great start … but it should document more recent cases, including up through today and this marriage case before the court.