| LGBT rights in the United States | |
|---|---|
United States |
|
| Same-sex sexual activity legal? | Legal nationwide since 2003 (Lawrence v. Texas) |
| Gender identity/expression | Laws vary by state |
| Recognition of relationships |
Varies by state |
|
Restrictions:
|
Defense of Marriage Act (1996) at federal level, other restrictions vary by state |
| Adoption | Varies by state |
| Military service |
Yes; "Don't ask, don't tell" policy repealed in September 2011 |
| Discrimination protections |
Varies by state. (see below) Federal see Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act |
Lesbian, gay, bisexual, and transgender rights in the United States have evolved over time and vary on a state-by-state basis. Sexual acts between persons of the same sex have been legal nationwide in the U.S. since 2003, pursuant to the U.S. Supreme Court ruling in Lawrence v. Texas.
Family, marriage, and anti-discrimination laws vary by state. Six states plus Washington, D.C. currently offer marriage to same-sex couples.[1] Maryland does not offer same-sex marriages but does recognize same-sex marriages performed elsewhere. Additionally, some states offer civil unions or other types of recognition which offer some of the legal benefits and protections of marriage.
Twenty-one states plus Washington, D.C. outlaw discrimination based on sexual orientation, and fifteen states plus Washington, D.C. outlaw discrimination based on gender identity or expression.[2] Hate crimes based on sexual orientation or gender identity are also punishable by federal law under the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009.
Adoption policies in regards to gay and lesbian parents also vary greatly from state to state. Some allow adoption by same-sex couples, while others ban all "unmarried couples" from adoption.
Contents |
Owing to the United States' federal system and the diversity in attitudes toward LGBT rights, the status of LGBT civil rights in the U.S. is at present a patchwork. At the federal level, there is no recognition of same-sex unions and no laws forbidding employment discrimination against LGBT persons. Some states have enacted such laws, however.
In 1972, the Supreme Court of Minnesota in Baker v. Nelson ruled that it did not violate the federal Constitution for a state to deny a civil marriage license to a same-sex couple. The controversy over same-sex marriage was revived in 1993, when the Hawaii Supreme Court ruled that the state constitutional ban on sex discrimination meant that same-sex couples were entitled to a civil marriage license unless the state could prove a compelling state interest.[3] A lower court in Hawaii then found that the state had failed to show such a compelling interest,[4] and same-sex marriage was legal in Hawaii for a day, before the judge stayed his ruling and the state constitution was amended in 1998 to allow the legislature to restrict marriage to different-sex couples.While the events in Hawaii did not actually lead to marriage rights for same-sex couples, they helped prompt the United States Congress to enact the Defense of Marriage Act in 1996, which forbade the federal government from recognizing same-sex unions and permitted states to decide for themselves whether to recognize same-sex unions performed in other jurisdictions; until that point, there had been a controversy over whether states would be required to extend marriage rights to couples married in other states. The rights and responsibilities of marriage granted at the federal level, thus, do not apply to same-sex unions. Several states followed Congress and enacted similar laws denying recognition of marriage or other forms of union between two persons of the same sex.
The landmark case Braschi v. Stahl (74 N.Y.2d 201; 1989) redefined "family unit" in the State of New York. Miguel Braschi, brother of the prominent Puerto Rican writer Giannina Braschi, lived in a rent controlled apartment with his gay partner Leslie Blanchard. When Blanchard died, the landlord Stahl & Associates notified Braschi that he was to be evicted because his name was not on the lease. The Trial Court found that that the long-term interdependent nature of the 10-year relationship between the two men "fulfills any definitional criteria of the term 'family.'" The Appellate Court reversed; Braschi appealed. The New York Supreme Court reversed the Appellate Court and granted the injunction to Braschi. The New York Supreme Court noted that the term family was not defined in the Statute, and there was no specific reference in the legislative history to the noneviction provision.
In 1999, the Vermont State Supreme Court ruled in Baker v. Vermont that the state had to offer the benefits and responsibilities of civil marriage to same-sex couples, and thus the state legislature enacted a civil unions bill. In 2007, the legislature introduced a bill to legalize same-sex marriage. The bill passed in 2009 but was vetoed by the governor. However, the legislature overrode the veto, and the law became effective on September 1, 2009.
In 2004, the Massachusetts Supreme Court, in Goodridge v. Department of Public Health, legalized same-sex marriage in Massachusetts.
In 2007 a similar decision in Iowa ruled that restriction of marriage to opposite-sex couples was discriminatory. The decision was stayed to allow the state to appeal, although not before one same-sex couple had been issued a marriage license. In 2009, the Iowa Supreme Court unanimously upheld the lower court's ruling and marriage licenses to same-sex couples became available on April 24, 2009.
In May 2009, Maine passed a marriage equality law. Same-sex marriage opponents placed a referendum to repeal the law on the November ballot and were successful in their repeal bid.
In 2010, Washington, D. C. legislatively enacted marriage equality in the district.
In 2011, New York legalized same-sex marriages.
These state court opinions prompted calls for a Federal Marriage Amendment, along with state amendments to ensure that courts would not change the civil definition of marriage. As of 2007, the legal options available to same-sex couples depend on what state they reside in.
Hawaii (1997), California (1999), Maine (2004), Connecticut (2005), New Jersey (2007), Washington (2007), Oregon (2008), Maryland (2008), Colorado (2009), Wisconsin (2009), Nevada (2009), Illinois (2011), Rhode Island (2011)[5] and Delaware (2012) have either civil unions or more limited domestic partnership options for same-sex couples.
However, a backlash of these efforts was felt during the 2004 election cycle where fourteen states amended their constitution to ban recognition of same-sex marriages and often civil unions as well. Mississippi voters amended their constitution, 86% to 14% – the largest margin in any state[6][7] – to ban same-sex marriage and to prohibit the state from recognizing same-sex marriages that are legal elsewhere. Laws in Virginia, Michigan, Nebraska and Ohio, the most far-reaching, forbids recognition of any benefits similar to those of marriage between people of the same sex.
A single gay person or a same-sex couple can adopt in some states,[8] although there are fewer states where they may adopt children jointly with their partners.[8]
A March 2011 public opinion poll by ABC News/Washington Post showed support for gay marriage at 53% among Americans,[9] and a May 2011 Gallup opinion poll also showed 53% support for gay marriage among Americans.[10] A May 2009 Gallup poll indicated 54% support for gays and lesbians being allowed to adopt children.[11]
Older polls showed that the nation could be divided into roughly equal thirds: one third supports gay marriage completely, another supports only civil unions, and the last is against any form of union entirely.[12][13] However, in terms of attitudes to homosexuality, the United States can hardly be called one country. It is common for polls to show a clear majority support for gay marriage in Northeastern states, and occasionally (but less frequently), Pacific Coast states. States that have consistently shown a majority support for gay marriage for at least the past few years include Massachusetts, Vermont, Connecticut, Rhode Island, New York,[14] New Jersey,[15] New Hampshire, and the capital, as well as (occasionally) Hawaii, Oregon, and Washington. While the majority of these states do not (currently) have gay marriage, Iowa, which does have gay marriage, does not have majority support; in fact, polls place support in the high thirties or low forties (still slightly higher than the national average). In New York, meanwhile, where there is a pretty clear majority support (consistently reported as at least a four-point lead since 2005), marriage only became legal in the middle of 2011 (and previously there had been nothing, despite the clear public opinion favoring marriage continuously for at least 6 years). Nonetheless, Iowa falls into a second category of states, where the incoming voting generation overwhelmingly supports gay marriage: those under thirty have support placed in the sixties.[16][17]
Openly lesbian and gay members of the US military were previously subjected to the US's "Don't ask, don't tell" policy. However, on December 18, 2010, The U. S. Senate voted 65-31 in favor of the Don't Ask, Don't Tell Repeal Act of 2010 permitting homosexual men and women to serve openly in the armed forces, to take effect 60 days after certification by the President, Secretary, and Chairman of the Joint Chiefs of Staff. President Barack Obama signed the repeal on December 22, 2010.[18] On July 22, 2011, President Obama, Defense Secretary Leon Panetta, and the Chairman of the Joint Chiefs of Staff, Admiral Michael Mullen certified that the military was ready for the repeal and that it would take place in 60 days. Repeal of the ban on gays in the military took effect September 20th, 2011. Gays and lesbians are now free to serve openly. [19]
Employment discrimination refers to discriminatory employment practices such as bias in hiring, promotion, job assignment, termination, and compensation, and various types of harassment. In the United States there is "very little statutory, common law, and case law establishing employment discrimination based upon sexual orientation as a legal wrong."[20] Some exceptions and alternative legal strategies are available. President Bill Clinton's Executive Order 13087 (1998) prohibits discrimination based on sexual orientation in the competitive service of the federal civilian workforce,[21] and federal non-civil service employees may have recourse under the due process clause of the U.S. Constitution.[22] Private sector workers may have a Title VII action under a quid pro quo sexual harassment theory,[23] a "hostile work environment" theory,[24] a sexual stereotyping theory,[25] or others.[26]
Twenty-one states, the District of Columbia, and over 140 cities and counties have enacted such bans. The states banning sexual orientation discrimination in employment are California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and Wisconsin (the first state to do so, in 1982).[27] Four states have laws prohibiting sexual orientation discrimination in public workplaces only: Indiana, Michigan, Montana, and Pennsylvania. On November 22, 2007, Michigan governor Jennifer Granholm issued an order guarding the rights of transgender men and women. She prohibited discrimination of state workers based on gender identity or expression.[28] Many of these laws also ban discrimination in other contexts, such as housing or public accommodation. A proposed bill to ban anti-gay employment discrimination nationwide, known as the Employment Non-Discrimination Act (ENDA), has been introduced in the U.S. Congress, but its prospects of passage are not believed to be good under a Republican-controlled Congress.
Fifteen states plus the District of Columbia[29] have reformed their state civil rights code by legislation or under the force of court decisions to include both sexual orientation and gender identity, while another six states have amended their civil rights code to include sexual orientation, but not gender identity. Aside from state law, about a hundred cities in thirty three states have enacted civil rights legislation that includes sexual orientation.
Housing discrimination refers to discrimination against potential or current tenants by landlords. In the United States, there is no federal law against such discrimination on the basis of sexual orientation or gender identity, but at least thirteen states and many major cities have enacted laws prohibiting it.[30] See, for example, Washington House Bill 2661.
On April 14, 2011, President Barack Obama issued an Executive Order to the Department of Health and Human Services to draft new rules for all hospitals accepting Medicare or Medicaid funds. They would require facilities to grant visitation and medical decision-making rights to gay and lesbian partners, as well as designees of others such as widows and widowers.[31] Such rights are not institutionalized in law in many states. Obama said he was inspired by the case of a Florida family, where one of the mothers died while her partner and four children were denied visitation by the hospital.[31]
Hate crime laws (also known as bias crimes laws) protect against crimes motivated by feelings of enmity against a protected class. Until 2009, statutes permitted federal prosecution of hate crimes committed against a person's race, color, religion, or nation origin when engaging in a federally protected activity (see 1969 hate crime law). On April 2009, the House of Representatives passed H.R.1913, the Local Law Enforcement Hate Crimes Prevention Act of 2009, which would define hate crimes in federal law to include gender, sexual orientation, gender-identity, and disability. The legislation would also remove the prerequisite that victims of hate crimes be engaging in a federally protected activity (see Matthew Shepard Act). On July 16, 2009, the US Senate also passed a Hate Crimes bill, originally S.909, as an amendment to the 2009 Defense Appropriations bill. On October 8, 2009, the House of Representatives voted 281 to 146 to approve the Conference Report Department of Defense Authorization, which contained the hate crimes provisions. On October 22, 2009, the U.S. Senate voted 68 to 29 to approve the Conference Report Department of Defense Authorization, which contained the hate crimes provisions.[32] On October 28, 2009 President Obama signed the bill into law.[33]
The DOJ/FBI, as well as campus security authorities, are required to collect and publish hate crime statistics (see Hate Crime Statistics Act and Campus Hate Crimes Right to Know Act).
Forty-five states and the District of Columbia have statutes criminalizing various types of bias-motivated violence or intimidation (the exceptions are AR, GA, IN, SC, and WY). Each of these statutes covers bias on the basis of race, religion, and ethnicity; 32 cover disability; 31 of them cover sexual orientation; 28 cover gender; 13 cover age; 13 cover transgender/gender-identity; 5 cover political affiliation.[34] 31 states and the District of Columbia have statutes creating a civil cause of action, in addition to the criminal penalty, for similar acts.[34] 27 states and the District of Columbia have statutes requiring the state to collect hate crime statistics; 16 of these cover sexual orientation.[34]
In Wisconsin v. Mitchell (1993) the Supreme Court unanimously held that state penalty-enhancement laws for hate crimes were constitutional and did not violate First Amendment rights to freedom of thought and expression.
Reparations for gays and lesbians in the United States were first proposed by Robert DeKoven, a professor at California Western School of Law in San Diego.[35] DeKoven cited the examples of the European Court of Human Rights as a model. New York University Professor and lawyer Jacob Appel was the first pundit to champion such a cause in a mainstream media outlet.[36] However, such proposals remain highly controversial.
In March 1956, a Federal District Court ruled that ONE: The Homosexual Magazine, was obscene under the Federal Comstock laws and thus could not be sent through the United States Postal Service. This ruling was upheld by the 9th Circuit Court of Appeals, but in 1958, the Supreme Court of the United States issued a landmark ruling in One, Inc. v. Olesen, 355 U.S. 371, which overturned the previous rulings under a new legal precedent that had been established by the landmark case, Roth v. United States, 354 U.S. 476 (1957). As a result, gay newspapers, magazines and other publications could be lawfully distributed through the public mail service.
On May 22, 1967, the Supreme Court of the United States upheld the Immigration and Nationality Act of 1952, which among other things banned homosexuals, as constitutional. This ban remained in effect until 1991.[37]
In 1972, a Tacoma, Washington teacher of twelve years with a perfect record was terminated after a former student outed him to the vice-principal. The Washington Supreme Court found that homosexuality was immoral and impaired his efficiency as a teacher. The court supported its conclusion in various ways, including the definition of homosexuality in the New Catholic Encyclopedia, the criminal nature of homosexual conduct, and finding that an "immoral" person could not be trusted to instruct students as his presence would be inherently disruptive. On October 3, 1977, the United States Supreme Court denied certiorari, although Justices Brennan and Marshall would have granted cert. This was the first homosexual discrimination decision to be aired on national network news. In fact, it was simultaneously aired on all three national network evening news shows, reaching approximately 60 million viewers.[38][39][40][41][42]
In 1985, the Supreme Court refused to hear an appeal of Gay Student Services v. Texas A&M University, letting stand an appellate ruling ordering the university to provide official recognition of a student organization for homosexual students. The case set a national precedent by removing legal restrictions against gay rights groups on college campuses.[43]
On June 30, 1986, the Supreme Court of the United States ruled in Bowers v. Hardwick, that homosexual sex was not protected under the right to privacy.
On May 20, 1996, the Supreme Court of the United States ruled in Romer v. Evans against an amendment to the Colorado state constitution that would have prevented any city, town or county in the state from taking any legislative, executive, or judicial action to protect homosexual or bisexual citizens from discrimination on the basis of their sexual orientation.
On March 4, 1998, the Supreme Court of the United States ruled in Oncale v. Sundowner Offshore Services that federal laws banning on-the-job sexual harassment also applied when both parties are the same sex. The lower courts, however, have reached differing conclusions about whether this ruling applies to harassment motivated by anti-gay animus.
On June 28, 2000, the Supreme Court of the United States ruled that the Boy Scouts of America had a First Amendment right to exclude people from its organization on the basis of sexual orientation, irrespective of any applicable civil rights laws.
On June 26, 2003, the United States Supreme Court ruled in Lawrence v. Texas that laws against sodomy or anal sex cannot be directed at homosexuals alone, and furthermore, that intimate consensual sexual conduct is part of the liberty protected by substantive due process under the Fourteenth Amendment. The majority opinion, written by Justice Anthony Kennedy, explicitly overruled Bowers v. Hardwick.[44] Despite this ruling, some states have kept their existing sodomy laws on the books,[45] and local police have sometimes used these statutes to harass or arrest gay people, even though charges are later dropped.[46] [47][48]
The main opponents of gay rights in the U.S. have generally been political and religious conservatives. Conservative Christians cite various Bible passages from the Old and New Testaments as their justification for opposing gay rights.[49] Regionally, opposition to the gay rights movement has been strongest in the South and in other states with a large rural population.
As the movement for same-sex marriage has developed, many national and/or international organizations have opposed that movement. Those organizations include the American Family Association, the Christian Coalition, Family Research Council, Focus on the Family, Save Our Children, NARTH, the national Republican Party,[50] the Roman Catholic Church, The Church of Jesus Christ of Latter-day Saints (LDS Church),[51] the Southern Baptist Convention,[52] Alliance for Marriage, Alliance Defense Fund, Liberty Counsel, Westboro Baptist Church, and the National Organization for Marriage. A number of these groups have been named as anti-gay hate groups by the Southern Poverty Law Center.[53]
Among the two major parties, the Democratic Party has endorsed some gay rights legislation in its national party platform since the 1980s. The Republican Party has close ties to the Christian right and thus tends to oppose gay rights legislation, as does its national party platform. However, there are some variations among individual politicians, i.e., a Democrat in a more rural district is less likely to support gay rights, while a Republican in a more urban district may be more likely to support gay rights. For example, former senator Barry Goldwater, a conservative Republican, had expressed strong support for gay rights;[54] he said gays should be allowed in the military, etc.[55] Similarly, Rudy Giuliani, also a noted Republican, does support civil unions[56][57] and other forms of gay rights. Post vice-presidency, Dick Cheney who is a conservative has come out in support of same-sex marriage, as his daughter Mary Cheney is openly gay. On the other hand, President Barack Obama, a Democrat, supports civil unions while opposing same-sex marriage.[58] The former chairman of the Democratic Party and former governor of Virginia Tim Kaine banned same-sex marriage in Virginia and supported a law that only a married couple could adopt children.
On November 15, 1989, Democratic Massachusetts Governor Dukakis signed the Gay Rights Bill into law. Massachusetts became the second state, after Wisconsin, to pass such a bill.
Today, active minor political parties have wide-ranging views on gay rights. The Libertarian Party has endorsed libertarian perspectives on LGBT rights since it was created in 1971, and the Green Party also has endorsed gay rights since it was created in the 1980s. While many American socialist and communist political parties initially preferred to ignore the issue, most support gay rights causes. The Socialist Party USA was the first party to nominate an openly gay man, David McReynolds, as its Presidential candidate in 1980. The Constitution Party strongly opposes gay rights and is tied to Christian Reconstructionism.
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