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Nicole Carmichael

From Corporate Board Rooms to College Dorm Rooms: Delawares Court of Chancery and How

It Shapes America

October 30, 2014


Equality should be a country-wide value that every single person can feel in their

personal, social, and economic lives. The concept of treating people fairly has been around for

centuries, but it was reevaluated during the 1960s, as certain constituency groups started to

realize that they were not, in fact, receiving the equality the United States had promised them.

The 14th amendment grants citizenship to all people born or naturalized in the United States,

promises them equal protection of the laws and ensures they will not be deprived of life,

liberty and property, without due process of law. 1 During the Civil Rights Movement,

progressive figures such as Martin Luther King, Jr. and Bayard Rustin took charge of the

revolutionary sentiment that was starting to bubble among African- American citizens. Yet this

sentiment did not stay contained in the African- American population, but rather inspired other

constituent groups to stand up for their cause and bring awareness and acceptance to their

community. One of these groups fought fervently for many years for gay rights.

The interaction between the Civil Rights Movement and the progression of gay rights in

Delaware is significant, as there are clear connections between the two movements. Laws were

passed to enforce equal treatment of people in the mid-1960s to early 1970s. The Civil Rights

Act was established in 1964, as a direct effect of Martin Luther King Jr.s efforts and those that

supported him or his cause. Later, however, other effects of the Civil Rights movement were still

emerging as an effect of this, such as the Education Amendments of 1972, which prohibited

gender discrimination in an educational setting. The Rehabilitation Act of 1973 was passed as

well, in order to ensure people with a disability were not discriminated against or treated

unfairly.2 In accordance with these amendments that are recognized as being strongly influenced

"14th Amendment to the Constitution Was Ratified," America's Story, accessed October 28, 2014,
"Impact of the Civil Rights Laws," U.S. Department of Education, last modified March 14, 2005, accessed October
28, 2014,

by the factors of the Civil Rights Movement, more acceptance and equality was distributed to

people of homosexual orientation as the sodomy law, and the law preventing same-gender

sexual relations, was repealed for the first time since its creation in 1719. 3 American minorities

across the country felt as if their say and their rights were tangible, and all they had to do was

advocate for their cause to make a change. Unfortunately, not all legal changes were matched

with immediate social changes; citizens and even police officers continued to treat homosexuals

with disrespect in public. At the University of Delaware in 1975, two male students were holding

hands publically on campus. A police officer condemned them, implying that this is not an act

that should be demonstrated in front of women and children. 4

However, in front of men, women, and children, gay leaders around the country were

demonstrating courageous acts in other ways that also intersect with the Civil Rights movement.

Philip Randolph was one of Martin Luther Kings close associates, as well as the man who

organized the March on Washington, which ended up being the one of the most influential

gathering of civil rights advocates in American history. Randolph recruited a man named Bayard

Rustin who, as an educated, peaceful, and passionate man, was able to help Randolph develop

the ideas that led to the March on Washington. Bayard Rustin happened to be gay. 5 Although

there was a negative stigma against homosexual couples in America during the Civil Rights

Movement, there was a positive atmosphere that encouraged people to get engaged in their

community and to speak up for what they stood for. This was the perfect era for Rusting; he was

a Quaker who followed the teachings of Ghandi and shared Kings values of attaining equality

through peaceful measures. But when Rusting spoke up for what he stood for, he was not

Douglas Marshall-Steele, "Timeline of Delaware's LGBT History," Towards Equality, accessed October 28, 2014,
Marshall-Steele, "Timeline of Delaware's LGBT," Towards Equality.
The March, directed by John Akomfrah, 2013.

respected for his values, his ideas, or his influence. He was labeled as gay, and to some during

the time, this label was an accusation. For this reason, throughout his whole life, Rustin was not

given the proper respect and credit that he deserved and worked for. In fact, Rustin was the

person who expanded the marchs focus to Jobs and Freedom, which ended up being a major

focus of the entire March on Washington. But as an openly gay man who was also accused of

being an ex-communist, he was not allowed to take the reins on this initiative.6 Instead,

Randolph took this title as Rustin was nudged off Kings team with threats of blackmail.

Representative Adam Clayton Powell disagreed with Kings decision to organize a march

outside the Democratic National Convention in Los Angeles. 7 He had a political conflict, so he

pulls out his greatest weapon against Rustin, which was merely Rustins sexuality. Powell

threatened to tell the press King and Rustin were gay lovers. 8 However, Rustin did receive

posthumous credit. John DEmilio wrote a biography titled Lost Prophet: Bayard Rustin and the

Quest for Peace and Justice in America, as well as gave lectures at the University of Delaware to

honor Rustin and address American homophobia. 9

The experience this man had can be related to by many people in more specific scenarios

and on the local level, as others can relate to his negative experiences. But there was also a

positive legacy that was left behind by people who fought for gay rights and stood strong in what

they believed in. The policies that should be made regarding gay rights have been a question on

the public agenda for decades. Delaware law shows a prime example of how the public

Henry Louis Gates, Jr., "Who Designed the March on Washington?," PBS, last modified 2013, accessed October
30, 2014,
The March.
Gates, "Who Designed the March," PBS.
John Brennan, "Lecture on Bayard Rustin, Civil Rights and Homophobia," University of Delaware Public Relations,
last modified February 8, 1996, accessed October 30, 2014,

controversy was addressed from the time people started advocating around during the Civil

Rights Movement, to current day. In 1980, the case Francis Mitchell v. State of Delaware was

seen by the Superior Court of Delaware in New Castle, Delaware. In this case, Mitchell was

being accused of selling a magazine entitled TV Swingers to a state police officer. This was

accepted as fact. 10 What was in question in this case was weather the contents of the magazine

were obscene enough to be considered illegal, and whether claiming the magazine is illegal

would be a violation of first amendment rights. It is legal for a magazine to refer to sexual acts,

as this is a natural part of life. However, it becomes illegal when the references would be

considered offensive to the average person applying contemporary community standards, and

if the work lacks serious literary, political or scientific value. 11 The conflict that arose rested

on the fact that the magazine was clearly directed towards male transvestites, which is not the

sexual orientation of the average person. This was also a time when contemporary community

standards were changing as they became more liberal and more people gained individual rights,

so it was difficult to come to a fair conclusion. The judge acknowledged that these magazines

protect the sexual minority from oppression and discrimination by the majority, referring to the

gay rights movement in San Francisco and elsewhere. The magazine is an expression of the

freedom of press and speech. In addition, it has scientific value because it contributes

significantly to the psychological well-being of its readers. 12 It gives them an outlet that may

otherwise have been difficult to find, since they are a minority.

This case is an application of the protection of the minorities that so many advocacy

groups worked to establish in the decades after the Civil Rights Movement. From the efforts of

"Francis R. Mitchell, Appellant, v. State of Delaware, Appellee," inLexisNexis (Reed Elsevier Inc.), 2, last modified
May 27, 1980, accessed October 29, 2014,
"Francis R. Mitchell, Appellant," in LexisNexis, 2.
"Francis R. Mitchell, Appellant," in LexisNexis, 3.

Martin Luther King to Bayard Rustin, peaceful equality for the majority has been a long-term

goal that society has tried to reach. This court case shows the progression of thought that people

used to obtain rights for people of varying sexual orientation. At first, it was thought that the

magazine in question in the case Mitchell v. State of Delaware was obscene and should be

illegal, but as the mindset of the general population was becoming more liberal and more

accepting, it was justified through the case description that the magazine was not obscene, and

Francis Mitchell is not guilty. 13

The people who stood up and represented a minority group that was not being accepted in

society left a positive influence on Delaware. The results will continue to be changed and

amended based on the human rights and values established during the Civil Rights Movement.

These values and ideas were spread to others to educate them and help them to understand the

conflict that went on, and in some ways is still going on. This was the concept behind the public

lecture sponsored by the University of Delaware in 1996 that spoke about Bayard Rustin, Civil

Rights, and Homophobia. 14 These types of events are what help to shape the younger

generations accepting viewpoints towards diversity. Today, there are prominent LGBT groups

on the University of Delawares campus, and they are widely accepted and supported by the

whole student population.

On the legal level, Delaware has also made major strides in the past half-century with gay

rights. Delaware is one of 18 states in the country that not only abides by the federal law that

prohibits discrimination against transgender and gender non-conforming people, but also has

state employment laws that require employers show no discrimination against sexual orientation

"Francis R. Mitchell, Appellant," in LexisNexis, 2.
Brennan, "Lecture on Bayard Rustin," University of Delaware Public

and gender identity. 15 For years, Rehoboth Beach has been a cutting edge location for gay

nightlife, clubs and bar scenes. Guest houses in this area of Delaware had a word of mouth

reputation of being gay-friendly. 16 On May 7th, 2013, the governor of Delaware, Jack Markell,

signed the Marriage Equality Bill into law. Same- sex couples are now allowed to be married in

Delaware, and they will receive the same benefits, rights, and freedoms, that a heterosexual

couple would have. This is a direct result of the people who have opened up enough to accept

themselves, show their whole self to society, then have the strength to wait for the rest of their

community to accept them as well.

"Non-Discrimination Laws," Movement Advancement Project, last modified October 28, 2014, accessed October
29, 2014,
"Rehoboth's LGBT History," Camp Rehoboth, last modified 2012, accessed October 29, 2014,

Brennan, John. "Lecture on Bayard Rustin, Civil Rights and Homophobia." University of
Delaware Public Relations. Last modified February 8, 1996. Accessed October 30, 2014.

"Francis R. Mitchell, Appellant, V. State of Delaware, Appellee." In LexisNexis. Reed Elsevier

Inc. Last modified May 27, 1980. Accessed October 29, 2014.

Gates, Henry Louis, Jr. "Who Designed the March on Washington?" PBS. Last modified 2013.
Accessed October 30, 2014.

"Governor Signs Marriage Equality Bill Into Law." Delaware. Last modified May 7, 2013.
Accessed October 29, 2014.

"Impact of the Civil Rights Laws." U.S. Department of Education. Last modified March 14,
2005. Accessed October 28, 2014.

Justia. "State Ex Rel. Wier v. Peterson." Justia US Law. Accessed October 30, 2014.

Library of Congress. "14th Amendment to the Constitution Was Ratified." America's Story.
Accessed October 28, 2014.

The March. Directed by John Akomfrah. 2013.

Marshall-Steele, Douglas. "Timeline of Delaware's LGBT History." Towards Equality. Accessed

October 28, 2014.

"Non-Discrimination Laws." Movement Advancement Project. Last modified October 28, 2014.
Accessed October 29, 2014.

"Rehoboth's LGBT History." Camp Rehoboth. Last modified 2012. Accessed October 29, 2014.