The world's homosexuality laws are currently diverse. For example, while the Netherlands recognizes same-sex marriages, under Saudi Arabian law a person might face the death penalty for homosexual acts, although other penalties may be used instead of the death penalty.
In the United States
In Homosexuality and American Law, treatment of homosexuals by the law has increasingly suggested that discrimination based on homosexuality employs a "suspect classification" subject to "strict scrutiny" under modern Fourteenth Amendment jurisprudence, with judges and scholars employing language to equate discrimination on the basis of sexual orientation with already forbidden racial discrimination practices. Where federal law forbidding discrimination against homosexuals remains scant, the several states have more than taken up the burden, and many have made sexual-orientation based discrimination actionable at law and equity. Perhaps this can be seen as an example of the robustness of the United States' federal system, as the states are acting just as Justice Oliver Wendell Holmes and Justice Brandeis expressed hope that they would, as "laboratories" of experimentation on the border of developed federal law.
The Supreme Court recently overturned a Texas law banning sodomy. The majority opinion, written by Justice Kennedy, suggests that all forms of discrimination, including that based on sexual orientation, are now subject to rational basis review, and will be frowned upon unless a legitimate state interest in the discrimination is expressed. Justice Kennedy also held that the need to legislate morals by the states' police power is no longer a legitimate state interest, absent specific physical harms being proven. Justice Antonin Scalia wrote a blistering dissent, characterizing the opinion as including phrases which will become the "dicta that ate the rule of law."
State Legislative Action in the United States Concerning Homosexuality
In 2008, conservative groups in the United States had a major victory. Proposition 8 passed in California. Proposition 8 was a voter-approved state Constitutional amendment that stated “Only marriage between a man and a woman is valid or recognized in California.” The Proposition 8 amendment passed with the support of over 7 million voters, which accounted for approximately 52% of the vote on November 4, 2008."
The Traditional Values Coalition has stated the following regarding state legislative action in the United States concerning homosexuality:
|“|| Homosexual power extends into state legislatures as well. The Human Rights Campaign (HRC), a homosexual group based in Washington, DC, issued a 34-page summary of state legislative activities in June, 2003.
Homosexual activists and their political allies have introduced 41 bills in 24 states that provide special legal protections for “sexual orientation” or “gender identity” (code for cross-dressers and transsexuals). A total of 146 pro-homosexual bills are under consideration in state legislatures in 2003. Only 31 pro-family bills have been offered in 2003 — and only two have passed. Homosexuals are clearly winning and pro-family forces are losing.
Judgment of founders of America on homosexuality
Sir William Blackstone, whose authored extensive Commentaries on the Laws of England from 1765-1769 became the preeminent legal authority that were admired and used by America’s Founding Fathers, stated:
|“|| IV. WHAT has been here observed..., which ought to be the more clear in proportion as the crime is the more detestable, may be applied to another offence, of a still deeper malignity; the infamous crime against nature, committed either with man or beast.... But it is an offence of so dark a nature...that the accusation should be clearly made out....
I WILL not act so disagreeable part, to my readers as well as myself, as to dwell any longer upon a subject, the very mention of which is a disgrace to human nature. It will be more eligible to imitate in this respect the delicacy of our English law, which treats it, in it’s very indictments, as a crime not fit to be named...This the voice of nature and of reason, and the express law of God, determine to be capital. Of which we have a signal instance, long before the Jewish dispensation, by the destruction of two cities by fire from heaven: so that this is an universal, not merely a provincial, precept.
The first law book of the America, authored by founding jurist Zephaniah Swift, referring to sodomy, stated,
This crime, tho repugnant to every sentiment of decency and delicacy, is very prevalent in corrupt and debauched countries where the low pleasures of sensuality and luxury have depraved the mind and degraded the appetite below the brutal creation. Our modest ancestors, it seems by the diction of the law, had no idea that a man would commit this crime. . . . [H]ere, by force of common law, [it is] punished with death. . . . [because of] the disgust and horror with which we treat of this abominable crime.
General George Washington, after being informed about the actions of a homosexual in the army, made a prompt and decisive response, issuing “General Orders” from Army Headquarters at Valley Forge on Saturday, March 14, 1778:
At a General Court Martial whereof Colo. Tupper was President (10 March 1778) Lieutt. Enslin of Colo. Malcom’s Regiment tried for attempting to commit sodomy, with John Monhort a soldier; Secondly, For Perjury in swearing to false Accounts, found guilty of the charges exhibited against him, being breaches of 5th Article 18th Section of the Articles of War and do sentence him to be dismiss’d the service with Infamy. His Excellency the Commander in Chief approves the sentence and with Abhorrence and Detestation of such Infamous Crimes orders Lieutt. Enslin to be drummed out of Camp tomorrow morning by all the Drummers and Fifers in the Army never to return; The Drummers and Fifers to attend on the Grand Parade at Guard mounting for that Purpose.
Massachusetts General Laws, section 272 orders,
|“||Whoever commits the abominable and detestable crime against nature, either with mankind or with a beast, shall be punished by imprisonment in the state prison for not more than twenty years.||”|
Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. Until 1961, all 50 States outlawed sodomy, with about half in 2003 continuing to provide criminal penalties for sodomy performed in private and between consenting adults.
Miller reports that the penalty for homosexuality in several states was death — including New York, Vermont, Connecticut, and South Carolina. Thomas Jefferson advocated “dismemberment” (castration) as the penalty for homosexuality in his home state of Virginia, and even authored a bill to that effect, reducing the penalty from death.
In the European Union
Laws protecting the rights of homosexuals in the European Union are more extensive than in the United States. All 27 member states have decriminalised homosexual acts, and have laws against anti-gay discrimination: seven ban some types of discrimination, four ban most types, and sixteen ban all discrimination based on sexuality. Twenty-four members (all except Cyprus, Greece and Latvia) allow openly gay individuals to serve in the military. Belgium, the Netherlands and Spain recognise same-sex marriage (Sweden will in 2009), ten recognise same-sex unions, and two recognise cohabitation. The issue is under consideration in Greece, Ireland, Italy and Romania; Cyprus does not recognise any form of union, and Latvia, Lithuania and Poland have a constitutional ban.
Same-sex couples can legally adopt any child in Belgium, the Netherlands, Spain, Sweden and the United Kingdom, and can adopt the children of one of the partners in Germany and Denmark. In Ireland, both partners can foster children, but only one can adopt, and in France, a single homosexual person can adopt. The other eighteen member states do not allow same-sex couples to adopt any child. Forty-four percent of EU citizens agreed that same-sex marriages should be legal across the EU; more than half agreed in Belgium, the Czech Republic, Denmark, Germany, Luxembourg, the Netherlands, Spain and Sweden; and less than 15% agreed in Bulgaria, Cyprus, Greece, Latvia and Romania.
- Media Cry ‘Marriage’ As Homosexual Couples Tie the Knot in Germany
- Homosexuality and Islam
- Pamela S. Karlan, "Loving Lawrence," available online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=512662
- See, e.g., N.Y.C. Admin. Code, s 8-107
- Brest, Levinson, et al, "Processes in Constitutional Decisionmaking: Cases and Materials," Fifth Edition.
- See Lawrence v. Texas, 539 U.S. 558
- Book the Fourth, Chapter the Fifteenth, “Of Offences Against the Persons of Individuals”
- Zephaniah Swift, A System of Laws of the State of Connecticut (Windham: John Byrne, 1796), Vol. II, pp. 310-311.
- Orders of his Excellency George Washington, 1778
- George Washington, The Writings of George Washington, John C. Fitzpatrick, editor (Washington: U. S. Government Printing Office, 1934), Vol. XI, pp. 83-84, from General Orders at Valley Forge on March 14, 1778
- Massachusetts General Laws: CRIMES, PUNISHMENTS AND PROCEEDINGS IN CRIMINAL CASES TITLE I. CRIMES AND PUNISHMENTS, CHAPTER 272. CRIMES AGAINST CHASTITY, MORALITY, DECENCY AND GOOD ORDER Section 34: Crime against nature
- JOHN GEDDES LAWRENCE and TYRON GARNER, PETITIONERS v. TEXAS
- Miller, Ph.D, The Founders on Homosexuality, Apologetics Press
- Barton, 2000, pp. 306,482
- Jefferson, Thomas (1781), Electronic Text Center, University of Virginia Library
- 1781, Query 14; cf. 1903, 1:226-227
- Eight EU Countries Back Same-Sex Marriage
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