Where Gay Rights will be in 20 years - Essay Example

Institute Where Gay Rights will be in 20 years Introduction Gay and lesbian rights have emerged as a significant inhuman rights and civil liberties debates over the last 30 years or so. Historically gay men and lesbian women have been denied the equal protection of law in employment, have been denied the welfare, social, legal and economic benefits of marriage and have systematically suffered marginalization. However, steady improvements have been observed over the years indicating that the civil and human rights of gay men and lesbian women are improving. However, with the federal government’s slow response and interventions whenever progress is made, indicates that we might be a long way off from granting gay men and lesbian women equal protection of the law. It is expected however, that those rights will gradually change and in twenty years from now, the rights, freedoms and protection of gay men and lesbian women will be virtually, but not entirely complete. History of Gay Rights When the Americans With Disabilities Act was enacted in 1990, then President Bush described the Act as an “Historic new civil rights Act” (Burgdoft, Jr. 1991, p. 413). The Act promised to ensure that all Americans with disabilities would be accorded equal opportunities for employment and doors previously shut to them would be opened (Burgdoft, Jr., 1991). However, the civil rights ambit of the Americans with Disabilities Act 1990 is questionable. The Act does not extend its protection to a number of individuals. Among the notable exclusions are homosexuals, transvestites and bisexuals (Americans with Disabilities Act 1990). In the context of the excluded classes of individuals, it can be inferred that the Americans with Disabilities Act 1990 regards homosexuals, bisexuals and transvestites as deviant groups undeserving of equal protection and equal opportunity. This can be inferred from the fact that the list of excluded individuals joining homosexuals, bisexuals and transvestites are illicit drug users, pedophiles, exhibitionists, voyeurs, and individuals with sexual disorders (Americans with Disabilities Act 1990). Title VII of the Civil Rights Act 1964 provides for equal protection and equal treatment of employees of the federal government and thus expressly prohibits discrimination on the basis of gender, national origin, religion, race or color (Title VII Civil Rights Act 1964). Implicitly there is no right to expect equal treatment on the basis of sexual orientation and therefore gay persons may not rely on Title VII of the Civil Rights Act 1964 to seek remedies against discrimination based on their sexual orientation. In fact, the US Supreme Court has said as much (Williamson v A.G. Edwards & Sons, Inc, 1990). The right to equal protection and equal treatment in employment by homosexuals and lesbians has been denied on the basis that bills intending to amend Title VII of the Civil Rights Act to include homosexuals and lesbians have not been passed (Blum v Gulf Oil Corp. 1979). A similar position is taken with respect to Title 42 USC 1981 and 1985 which protects against discrimination in employment by non-Federal employers (Title 42 USC 1981 & 1985). Courts have consistently rejected claims founded on claims of employment discrimination on the basis of sexual orientation (De Santis v Pacific Tel. & Tel. Co. 1979). Gays in the US have also been denied the advantages and benefits that emanate from marriage. The Defense of Marriage Act 1996 states that its purpose is to “define and protect the institution of marriage” (Defense of Marriage Act 1996). Pursuant to the Defense of Marriage Act 1996, marriage is defined as a “legal union between one man and one woman” (Defense of Marriage Act 1996, Section3). Moreover, no state is obliged to accept a same sex marriage legalized by any other state (Defense of Marriage Act 1996, Section). Section 2 of the Defense of Marriage Act 1996 is apparently unconstitutional. The Full Faith and Credit Clause of the US Constitution requires that all states recognize the legislation and judicial rulings rendered by other states (US Constitution, Article IV, Section 1). Conceivably, this should mean that a marriage solemnized in one state should be recognized by another state. The denial of marriage to gay men and lesbians is a denial of various benefits and advantages. These benefits and advantages are defined as a “deprivation that restricts their citizenship and hinders their mental health and well-being” (Herdt & Kertzner, 2006, p. 33). The denial of marriage to gay men and lesbian is significant as marriage is described as a “fundamental human right” (Herdt & Kertzner, 2006, p. 33). In Western cultures marriage together with parenting are viewed as containing a “bundle of rights and duties” (Herdt & Kertzner, 2006, p. 33). This perception originates out of the history of marriage and parenting in Western cultures which were: Prerequisites for achieving power, knowledge, and most social privileges, including economic support and socioreligious status (Herdt & Kertzner, 2006, p. 34). Today marriage opens the door to a number of benefits that not only benefit wedded couples, but also children of the marriage. Marriage facilitates tax benefits, health benefits, assistance for a sick spouse, the devolution and disposition of real property and the adoption and fostering of children. A number of US states have conferred the right to adopt children on married couples and single parents but not to gay or lesbian couples. Moreover, the right to visit gravely sick persons in medical facilities is limited to blood relatives or spouses (Schmidt et al, 2011). It is therefore hardly surprising that over the last three decades homosexual and lesbian rights groups have emerged challenging the status quo relative to marriage in the US. A number of US States have responded to these initiatives (Schmidt et al, 2011). However, as noted the Federal government intervened by passing the Defense of Marriage Act to limit the extent to which the laws of one state may be forced on the laws of another. Thus there is no federal right to marriage on the part of gay men and lesbian women. Historically gay men and lesbians have also been banned from the US Military. A culmination of compromised, controversies and debates gave way to what is known as the Don’t Ask, Don’t Tell military position which states that: The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion which are the essence of military capability (US Code Title 10, Subtitle G, Section 654: Policy Concerning Homosexuality in the Armed Forces, 1994). Under the Don’t Ask, Don’t Tell US military policy, any member of the military that engaged in, or attempted to solicit or engage in homosexual conduct or reveals that he or she is a homosexual or bisexual or is in a same sex marriage or relationship can be removed from the military (Feder, 2009). Obviously, from the perspective of civil rights activists and gay and lesbian rights advocates, the Don’t Act, Don’t Tell military policy and federal law was unconstitutional. Current Status of Gay Rights At this point, gay rights remain one of the most significant civil rights issues in the US. As of 2008 all states with the exception of Massachusetts marriage was regarded as a legal union between “one man and one women” (Ford, 2008, p. 403). By July 20, 2011 six states recognized same sex marriages. The six states are Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and New York. A Federal judge ruled that the ban on same sex marriages in California was unconstitutional and for a while gay men and lesbians were permitted to marry. However, Proposition 8 restored the ban in 2008 (CNN 2010). In any event, there is a slow, but steady progression toward the recognition of gay and lesbian rights in the US. Currently the Respect for Marriage Bill is poised to repeal the Defense of Marriage Act 1996 and intends to make same sex marriages legally recognized across the US if the marriage was legal in another state or outside of the US (Respect for Marriage Act 2011). If the Respect for Marriage Act 2011 is enacted, it would ensure that gay men and lesbians can travel to another state or jurisdiction where same sex marriages are legal, marry and have that marriage recognized by all other states. In November 2011, the Senate Judiciary Committee voted to pass the Defense of Marriage Act 2011 by a 10 to 8 majority, demonstrating virtually a split decision (Thrasher, 2011). Thrasher (2011) expresses pessimism over whether the Respect for Marriage Act 2011 will be enacted any time soon. Thrasher (2011) predicts that the House of Representatives will never obtain enough votes to move the Respect for Marriage Act 2011 along. Even so, significant progress has been made with respect to family law and culture in the US relative to gay and lesbian rights. As of 2007, there were 65,000 adopted children in same sex families and 14,100 foster children residing with a gay foster parent or parents (Gandossy, 2007). Those numbers have increased since 2007, although there remains gaps in the law that deny the children of gay and lesbian couples the kind of protection that heterosexual children enjoy, primarily because of the current status of legal same sex marriages across the US (Tavernise, 2011). The reality is, the culture of marriage and family in the US has changed dramatically. Even so, the law is not keeping up with these changes. The repeal of Don’t Ask, Don’t Tell represents the most significant change for gay and lesbian civil rights in recent times. Although opposed by some members of the US Congress, the Don’t Ask, Don’t Tell law and policy of the US military was repealed, permitting openly gay citizens to serve in the military and significantly prohibiting the discharge of openly gay military members (Burns, 2011). Predictions for the Future of Gay Rights If history is any guide, it is anticipated that more and more states will legalize and recognize same sex marriages. Within 20 years it can be expected that a majority, if not all US states will recognize and legalize same sex marriages in the US. Knox and Schacht (2009) predict that same sex marriages will be recognized by all states a lot sooner. The fact is, the welfare and protection of children have remained at the forefront of US politics and since children are systematically denied equal protection and benefits as a result of policies and laws against same sex marriages, it is expected that same sex marriages will change to permit same sex marriages if only for the protection of children raised in same sex or gay/lesbian homes. At the very least it is expected that same sex civil partnerships will be recognized and protected in all states within the next 20 years, if not sooner. With Europe and Canada leading the way, it is expected that the US will follow. In Europe and Canada gay men and lesbian have benefited from statutes that either legalize same sex marriages or same sex partnerships, a new family culture is taking shape in the Western world (Eskridge & Spedale, 2006). Despite the Federal government’s past resistance to same sex marriages there is reason to be optimistic with key politicians supporting the Respect for Marriage Act 2011. Even if the 2011 Act is not passed by the current House of Representatives, the changing climate in family dynamics will eventually result on changes that mirror the changes in Europe and Canada. The US repeal of the Don’t Ask Don’t Tell military policy and law is reason enough to be optimistic about the future of gay and lesbian rights in the US. The repeal of the Don’t Ask Don’t Tell policy and law was a hard fought battle. It represents a break from tradition that stereotyped and marginalized gay and lesbian US citizens. It is therefore expected that other changes will follow in the years to come. First and foremost, it is expected that the US, like the European Convention on Human Rights and various European Community Directives, will amend its federal legislation to prohibit discrimination on the basis of sexual orientation. It is more likely than not that these changes will occur within the next 20 years, if not sooner. Bibliography Americans with Disabilities Act 1990. Blum v Gulf Oil Corp. 597 F. 2d 936 (5th Circuit 1979). Burgdorf RL Jr. “The Americans with Disabilities Act: Analysis and Implications of a Second-Generation Civil Rights Statute.” Harvard Civil Rights/Civil Liberties Law Review. (1991), 26:413–522. Burns, R. “Don’t Ask, Don’t Tell Repeal Goes into Effect.” The Huff Post, September 20, 2011. http://www.huffingtonpost.com/2011/09/20/dont-ask-dont-tell-repeal_n_971406.html (Retrieved November 15, 2011). CNN. “Judge Gives Green Light for Same-Sex Marriage in California.” CNN. 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