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."
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
- Eight EU Countries Back Same-Sex Marriage