Difference between revisions of "Homosexual rights advocacy"

Revision as of 14:48, April 26, 2007

Introduction

The gay rights movement seeks to elevate homosexuality to the same level of social and political respectability as normal conjugal love. It seeks to remove the stigma of sexual perversion from homosexuality by arguing that either,

1. Homosexuality is an immutable trait, and discriminating against immutable traits is wrong (cf. race discrimination), or,
2. Homosexuality, if not immutable, is highly correlated with personality, and discriminating against such deeply rooted notions of self is wrong, as well (cf. religious intolerance).

The movement does not seek to convince others that homosexuality is right: rather, it seeks to convince the public that it is not wrong enough to regulate, criminalize, or stigmatize.

Legal Success

Courts, including the Supreme Court, have accepted either one or both of these rationales. In Romer v. Evans, the Court found that discriminating against homosexuals could only be explained by a rational of animus laid bare, which was not enough even to allow state condemnation of homosexuality under the rational basis review test. Romer, then, protects the status of homosexuality from undue discrimination that occurs without a rational basis.^[1]

Homosexual conduct was formerly illegal in many states.^[2] In the last decade of the twentieth century, although these laws existed, they were rarely (if ever) enforced.^[3] Without disclosing whether it saw homosexuality as a status protected from discrimination at as high of a level as gender and race, the Court struck down bans on homosexual conduct, framing it as an expansion of its privacy jurisprudence.^[4]

The status of homosexuality before the law, then, is in some degree of flux. While bare discrimination against homosexual status is facially unconstitutional lacking a rational basis, and while preventing homosexual conduct is similarly unconstitutional, the Supreme Court has held in these landmark cases that the state may discriminate against homosexuals to preserve an "institution that the law protects" - namely, marriage.^[5] As such, the standard to be applied in deciding if discrimination against homosexuals is wrong is somewhere in between rational basis review and strict scrutiny review. Justice Antonin Scalia thinks that this uncertainty will surely be resolved in the favor of gay rights, and he warns that such a legal erosion will result in the downfall of the law's moral authority.^[6]

Opposition to Gay Rights

Since opposition to homosexuality is closely correlated with religious views, those who oppose the gay rights movement characterize its ignorance of religion as intolerance, similar to, or worse than, the intolerance leveled against gays. The rejoinder argument is that the gay rights movement does not seek to make religion illegal.

References

1. ↑ Romer v. Evans, 517 U.S. 620
2. ↑ See generally Bowers v. Hardwick, 478 U.S. 186
3. ↑ Lawrence v. Texas, 539 U.S. 558, Justice Anthony Kennedy, in the Opinion of the Court, found this in his historical analysis.
4. ↑ Lawrence v. Texas, 539 U.S. 558
5. ↑ Lawrence v. Texas; Kennedy & O'Connor both reached this conclusion explicitly.
6. ↑ Lawrence v. Texas, Scalia, J., dissenting.

External Links

1. A gay rights perspective, the Human Rights Campaign, www.hrc.org
2. An anti-gay rights perspective, {{ }}