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Gay and lesbian rights

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Description: Constitutional and statutory protections against legal discrimination based on homosexual orientation.


Significance: The Supreme Court has been slow to recognize constitutional rights on the basis of sexual orientation, and when it eventually held that states may not criminalize homosexual practices among consenting adults, the majority of the justices signaled that the ruling did not necessarily imply equal rights in areas such as marriage and the military.


Although the U.S. Constitution does not directly assign any rights to persons based on their sexual orientation, the due process clauses of the Fifth and Fourteenth Amendments prohibit the federal and state governments from arbitrarily depriving a person of liberty. Also, the equal protection clause of the Fourteenth Amendment requires the states to provide all persons with the equal protection of the laws, and the Supreme Court has construed the due process clause of the Fifth Amendment as imposing a similar requirement on the federal government. These clauses would appear to offer gays and lesbians at least some security against the kinds of legal discrimination and disability that has long been their lot. In Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972), the Court recognized a constitutional right to privacy, or “liberty interest,” that encompassed the decision to use contraceptives. In a long line of subsequent rulings, the right to privacy was expanded to protect abortion rights as well as several aspects of sexual autonomy. For many years, however, it was not clear how privacy rights related to the numerous state laws that criminalized nonviolent homosexual acts between among adults in private circumstances. Before 1986, the Supreme Court denied certiorari for cases dealing with this issue. Finally, in Bowers v. Hardwick (1986), a sharply divided Court held that the constitutional right to privacy did not encompass consensual homosexual sodomy. The right was limited to matters of reproduction, traditional marriage, family intimacy, and values respected by the mainstream in the nation's history and traditions, which, in the Court's view, excluded homosexual activities. Dissenters construed the issue more broadly--as invoking a comprehensive “right to be let alone,” so long as a person's actions did not cause any harm. At the time, twenty-four states had antisodomy statutes that were enforced nearly exclusively against homosexuals. By the mid-1980's, the gay rights movement was finally achieving legislative relief from discrimination in employment, education, housing, and public accommodations. Although Congress did not amend federal civil rights laws to include the category of sexual orientation, a growing number of states, as well as cities and counties, responded with a variety of statutes and ordinances. In Colorado, however, a backlash against such measures resulted in Amendment 2, which was added to the state constitution in a popular referendum, prohibiting any legislation protecting homosexuals from discrimination. In Romer v. Evans (1996), the Supreme Court decided, by a 6-3 majority, that Amendment 2 violated the equal protection clause of the Fourteenth Amendment. Although states had no obligation to enact legislative protections, Colorado's constitutional preclusion of the right even to attempt legislative protection was “inexplicable by anything but animus” against homosexuals, and it lacked “a rational relationship to legitimate state interests.” However, the Court declined to recognize homosexuality as a “suspect classification,” which meant that discriminatory classifications aimed at homosexuals required only a rational basis to be judged constitutional. This was a much less demanding standard than would be necessary to justify classifications based on race or gender. Supreme Court precedents indicated that public accommodation laws prohibiting discrimination based on sexual orientation would not be applicable to private clubs that explicitly included opposition to homosexuality as integral parts of their missions. The precedents, however, did not make it clear whether the laws would be binding on large private clubs that had not explicitly advertised such views. This was the main issue in Boy Scouts of America v. Dale (2000), in which an assistant scoutmaster, who was dismissed when officials learned of his gay status, sued the Boy Scouts under New Jersey's antidiscrimination statute. Boy Scout leaders argued that they had always defended traditional notions of morality, and that one of their advertised purposes was to promote behavior that is “morally straight,” which they asserted was widely understood by the public to be inconsistent with homosexual acts. The Supreme Court, by a 5-4 vote, accepted the argument and ruled in favor of the Scouts. The ruling was based on the doctrine of expressive association, which included the First Amendment right of a private club to control its message about its values and purposes. Supporters of gay rights were more pleased with the ruling in Oncale v. Sundowner Offshore Service (1998), which held that federal law banning sexual harassment applied to situations in which harassed parties are of the same sex. The majority opinion in the case, however, included a qualification that the law would apply only to harassment that occurs “because of sex,” which seemed to imply that the law would not apply to harassment based on antigay animus without any sexual or erotic element. Lower courts have differed widely in their interpretation of the Oncale ruling. Historically, gays and lesbians were banned from participation in the U.S. military services. In 1993, following a heated controversy, the services agreed to a compromise that was labeled “don’t ask, don’t tell.” This compromised continued the official ban on gay and lesbian membership in the armed services but did not require persons joining the military to say anything about their sexual orientation. However, any serviceman or woman found to have engaged in a homosexual practice would be subject to dishonorable discharge. Although many people questioned whether the policy had any rational basis, the majority of Supreme Court justices were apparently not prepared to find that the policy was unconstitutional. By 1999, the Court had refused to review five lower court rulings that upheld the don’t-ask-don’t-tell policy. Many universities and law schools protested the military's discriminatory policy by refusing to allow military recruiters to use their facilities. Congress responded with the Solomon Amendment (1996), requiring recipients of federal funds to allow military recruiters access equal to that of other employers who come on campus to recruit. In a unanimous ruling in Rumsfeld v. Forum for Academic and Institutional Rights (2006), the Court upheld the Solomon Amendment. The Court explained that the law did not violate the First Amendment, because the act of permitting recruiters to use university facilities did not necessarily indicate any institutional endorsement for the policies of the military. Individuals were free to engage in nonviolent protests against the recruiters if they so desired. Proponents of gay rights were pleasantly surprised with the watershed case Lawrence v. Texas (2003) case, in which the Court held by a 6-3 majority that a Texas statute criminalizing homosexual conduct between consenting adults was an unconstitutional violation of the “right to liberty under the due process clause,” declaring that the statute furthered “no legitimate state interest which can justify the intrusion into the personal and private life of the individual.” Also, by a 5-4 vote, the Court explicitly overturned the Hardwick precedent. By applying rational-basis analysis, the Court refused to recognize that homosexual practice was a fundamental right to be assessed by strict scrutiny. Only one of the justices in the majority, Sandra Day O’Connor, wanted to base the decision on the equal protection clause, which would have had expanded application for the ruling. The immediate effect of the Lawrence decision was to strike down antisodomy laws in twenty-four states and the District of Columbia. However, the written opinions in the case indicated that the majority of justices were not ready to apply the ruling to the military, marriage, or other areas. In 2006, the Seventh Circuit declined to extend the reasoning of Lawrence to cases involving consensual adult incest. Since the 1960's, gay and lesbian activists have argued that they should have an equal right to enter into legally recognized marriages, with the same tax benefits and other privileges that heterosexuals enjoy. They commonly point to Loving v. Virginia (1967), in which the Court held that the equal protection clause barred the states from prohibiting interracial marriage. In the 1990's, Hawaii's high court was poised to rule that the state constitution mandated recognition of same-sex marriages, but the quick addition of a state constitutional amendment prevented the ruling. In 1996, the U.S. Congress responded to conservative fears by passing the Defense of Marriage Act (DOMA), declaring that the states would not be required to accept either same-sex marriages or civil partnerships under the full faith and credit clause of the Constitution. In 2000, Vermont's high court held that its state marriage laws were unconstitutional, but it accepted the legislature's enactment of civil partnerships, in which the state provided the same benefits that it gave to traditional marriages. In 2004, Massachusetts's more liberal high court ruled that its state constitution guaranteed gays and lesbians nothing less than full equality in marriage rights. In November of that year, the U.S. Supreme Court declined to review a challenge to the resulting Massachusetts statute that permitted gay and lesbian couples to marry. In 2006, it was expected that eventually the Supreme Court would be asked to decide if other states could refuse to recognize the validity of these marriages under their laws and DOMA. In 2006, conservatives in Congress barely failed to get enough votes to initiate a constitutional amendment that would have permanently guaranteed that the full faith and credit clause would not apply. The controversial issue promised to provoke much heated debate and judicial litigation for many years into the future.



Further Reading

  • Gertsmann, Evan. The Constitutional Underclass: Gays, Lesbians, and the Failure of Class-Based Equal Protection. Chicago: University of Chicago Press, 1999.
  • Kranz, Rachel, and Tim Cusick. Gay Rights. New York: Facts On File, 2005.
  • Murdoch, Joyce. Courting Justice: Gay Men and Lesbians v. the Supreme Court. New York: Basic Books, 2001.
  • Phelan, Shane. Sexual Strangers: Gays, Lesbians, and Dilemmas of Citizenship. Philadelphia: Temple University Press, 2001.
  • Pierson, Jason. Courts, Liberalism, and Rights: Gay Law and Politics in the United States and Canada. Philadelphia: Temple University Press, 2005.
  • Richards, David. The Case for Gay Rights: From Bowers to Lawrence and Beyond. Lawrence: Univ. Press of Kansas, 2005.