Gay rights and the US Constitution
- Most members ofAmerica’s governing institutions have not been at the forefront of protecting rights for gays.
- The federal courts, where minority rights should be protected, have a mixed record in this area.
- Unlike abortion and the temporary cessation of the death penalty, gay rights is an issue where the federal courts have rarely gone against popular social opinion in favour of minority rights.
- The Constitution said nothing explicitly or directly about homosexuality.
- The Constitutional protection afforded citizens’ sexual behaviour is unclear and unsettled.
- Ironically, the Supreme Court did not apply a ‘right to privacy’ to homosexual activity in Bowers vs Hardwick (1986). Justice Byron White concluding that the right to privacy only applied in questions of marriage and family life and procreation. He had supported the ‘right to privacy’ in Griswold vsConnecticut(1965)!
- Unenforceable, the Bowers ruling has left homosexuals with the status of unapprehended felons.
- The Supreme Court has been reluctant to extend broad First Amendment protections to homosexuals.
- The Supreme Court has struck down anti-gay moves e.g. a provision in the Colorado constitution in 1996 that prohibited protection to homosexuals.
- DOMA 1996 defines marriage as between a man & woman = no state can legally declare homosexuals married and the remaining states do not have to give ‘full faith & credit’ as outlined in the Constitution.
Questions to consider for class discussion:
- Is the Constitution to blame for the inequality for gay couples or is it simply the fact thatUSsociety doesn’t support gay rights strongly enough? Perhaps this means the Constitution has failed to protect this minority like it failed for blacks until the 1960s?
- Should the Supreme Court strike down DOMA? How might this end up being negative for homosexuals in the long run?
- What does all this mean for the ‘rights of the individual’?