Contemporary Issues and Trends in Homosexuals and the Law

Introduction

Since America was founded, individuals have had to fight for their rights. In some cases, individuals have had to fight for their lives. Different eras have brought freedoms and protections to African Americans, women and various ethnic groups that have come to the United States. American born homosexuals do not share all of the same rights as their fellow citizens. In 2009, marriage can occur between any ethnic groups within in the United States. However, homosexuals are not allowed to marry one another in the majority of the states. This paper will briefly summarize three of the issues that homosexuals currently face and follow with discussions pertaining to current trends concerning these homosexual issues.

Issues

The issues for homosexuals are not few and far between as some might imagine. Homosexuals face a wide array of discrimination each and every day of their lives. From being born an American and not having the same legal rights as heterosexuals and on to intolerance from organizations, homosexuals are faced with a fight similar to what African Americans and women faced in the past. This section will summarize some of the present issues that homosexuals face.

Should any organization be allowed to defame or discriminate against homosexuals?

While our United States Constitution offers Freedom of Speech, defaming one's character is not protected. There are laws that allow others to be held civilly responsible if they defame other individuals. However, homosexuals are not "protected" from receiving defamation from various organizations within the United States. Even though our children our taught about equal protection in school, they are not taught about how to tolerate homosexuals. This author will discuss how these organizations are allowed to defame and discriminate against homosexuals all the while teaching children to do the same.

Should the federal government and states mandate laws to protect homosexuals from hate crimes? 

Hate crimes are an issue for many people who are in some way different. People with different skin color, cultural background, sexual orientation and even disabilities are victims of hate crimes. However, most diverse groups have laws that protect them from hate crimes. Unfortunately, hate crime laws do not protect homosexuals. This author will discuss homosexual hate crime statistics, arguments for and against homosexual hate crime protection, the states that do not include homosexuals in hate crime laws and the federal proposed law that failed to get President Bush's approval.

Should federal or state law mandate homosexuals' individual rights?

In the United States, American born citizens are protected by the United States Constitution. This sacred document allows American citizens to enjoy many freedoms and rights. However, according to some lawmakers, not all American born citizens should be able to enjoy these freedoms and rights. These freedoms and rights include everything from being able to marry the person of one's choice onto privately expressing one's love with that person. Currently though, homosexuals are not afforded all of the same individual rights, or "privileges" as some might say, as heterosexuals. This author will discuss current and recent past decisions and statutes controlling the individual rights of homosexuals.

Issues Conclusion

As summarized above, homosexuals have issues that are not issues for other men and women across the United States. Unlike these other men and women, these issues make it seem as if homosexuals are not full American citizens. Under federal law, homosexuals can have hate crimes committed against them. Under most state laws, homosexuals are not allowed to marry. And, organizations are allowed to discriminate against and defame homosexual individuals. The next section of this paper will discuss the current trends as they relate to the issues summarized above.

Current Trends

Defaming and Discriminating Homosexuals

While our Constitution protects our Freedom of Speech, defamation of another is not allowed. However, groups such as the Westboro Baptist Church (2009), are allowed to picket not only homosexual functions, but also funerals and Christian concerts all the while defaming homosexuals. According to Yatar (2003), defamation is based upon the following: "a. a false and defamatory statement concerning another; b. an unprivileged publication to a third party; c. fault amounting at least to negligence on the part of the publisher; and d. either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication" (p. 122). By publishing statements such as, "WBC took her ministry to the streets, conducting peaceful demonstrations (to date) opposing the fag lifestyle of soul-damning, nation-destroying filth," the Westboro Baptist Church (2009) seems to go beyond the right to any speech. Yatar (2003) writes of such statements from groups such as the Westboro Baptist Church and individuals as encouraging the continued discrimination of homosexuals (p. 142).

Discrimination is another key concept concerning homosexuals. According to Yatar (2003), the Civil Rights Act of 1964 has been used by courts to allow businesses to discriminate against homosexuals in the workplace. Furthermore, Yatar (2009) notes that such acts by the courts allow businesses to sexually harass homosexuals. By legally allowing discrimination of homosexuals, Yatar (2009) writes that homosexuals are in danger of serious harm due to the lack of laws to protect them. As discussed in the next section, the Supreme Court has made various rulings that, according to Yatar (2009), are movements toward laws protecting homosexuals from defamation and discrimination. However, would such laws protect homosexuals from private organization discrimination?

Kelly (2002) verifies New Jersey's anti-discrimination law. However, as Kelly (2002) confirms, the United States Supreme Court allow the New Jersey Boy Scouts of America to discriminate against a homosexual member by kicking him out of the organization. According to Kelly (2002), the Court of Appeals agreed that the life long Scout had a right under New Jersey law to be a member, the Court reversed the lower decision writing, "the forced inclusion of an unwanted person in a group infringes the group's freedom of expressive association if the presence of that person affects in a significant way the group's ability to advocate public or private viewpoints" (p. 248). Contrary to the Court's own decision, Kelly (2002) noted that Justice Rehnquist suggested that statutes could be passed to prohibit such discrimination. Kelly (2002) writes that Justice Stevens' dissent suggests that the Boy Scouts of America is attempting to adopt one religion as there are various religions that do not view homosexuality as wrong. Therefore, as implied by Kelly (2002), the Freedom of Religion is not being allowed under the Boy Scouts of America. Unfortunately, such young teachings - as also found with the Westboro Baptist Church - can lead to discrimination within our educational system.

Like Matthew Shepard, Setoodeh, Murr and Ordonez (2008) write about 15 year-old Larry King who was murdered due to his homosexuality. Only, Larry was not murdered out on the streets; he was murdered right in his classroom (Setoodeh et al., 2008). Setoodeh et al. (2008) verified that a fellow student, who Larry verbally let it be known that he had a crush on, planted a single bullet in Larry's head. Setoodeh et al. (2008) also write of the teachers who tried to force Larry to be like the other "normal" kids by telling him to get rid of the make up and girl clothes. However, just 15 days before Larry's murder, Setoodeh et al. (2008) shares a letter that was sent out by the Vice Principal concerning Larry:

            We have a student on campus who has chosen to express his sexuality by wearing make-up," the e-mail said without mentioning Larry by name. "It is his right to do so. Some kids are finding it amusing, others are bothered by it. As long as it does not cause classroom disruptions he is within his rights. We are asking that you talk to your students about being civil and non-judgmental. They don't have to like it but they need to give him his space. We are also asking you to watch for             possible problems. If you wish to talk further about it please see me or Ms. Epstein. (p. 41).

Larry's story not only demonstrates the need for anti-discrimination laws, but also it demonstrates the need for teachings of tolerance within the educational system. As the Vice Principal's letter pointed out, it is not about others liking homosexuality, but instead, it is about tolerating homosexuality.

Defamation and discrimination of homosexuals are obvious parts of our society as a whole. While we maintain the right to expressing our thoughts and opinions, we do not maintain the right to publicly harm homosexuals or any other diverse group for that matter. By allowing and teaching discrimination against homosexuals as the Westboro Baptist Church teachers, we, as society are opening the door and allowing hate crimes to be committed against people like Larry. Larry was probably not the last homosexual to have a hate crime committed against him, and as discussed in the next section, Larry was not the first. 

Hate Crimes against Homosexuals

According to the Federal Bureau of Investigations, or FBI, hate crime is defined as, "a criminal offense committed against a person, property, or society which is motivated, in whole or in part, by the offender's bias against a race, religion, disability, sexual orientation, or ethnicity/national origin" (1998, p.57). The FBI annually tracks crimes that are reported to its agency. Through various means, the Uniform Crime Report demonstrates how many crimes were committed or who the crime was committed against. According to the FBI (2006), there were 1,415 reported hate crimes against individuals because of their sexual orientation in 2006. While the FBI did not receive any reports of murder as a hate crime for 2006, the FBI indicated that there were five homosexuals murdered due to their sexual orientation in 2007 (2006; 2007). Unfortunately, not only the murder rate of homosexuals increased from 2006 to 2007, but also the overall crimes committed against homosexuals based upon their sexual orientation increased to 1,460 (FBI, 2007). While the FBI properly defines what a hate crime is and who it includes, some governments fail to include laws to protect homosexuals from hate crimes.

While 30 states have laws, either civil, criminal or both, that hold those responsible who commit hate crimes against homosexuals, 20 of the states do not include sexual orientation hate crimes in their statutes (Anti-Defamation League, 2008). According to the Anti-Defamation League (2008), these states include: Alabama, Alaska, Arkansas, Georgia, Idaho, Indiana, Michigan, Mississippi, Montana, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Utah, Virginia, West Virginia and Wyoming. A question that comes to mind when comparing these statutes compared to the UCR is whether or not it is legal for a homosexual to be murdered, based upon his sexual orientation, in a state that does not hold those criminally responsible for such hate crimes? While the crime of murder would be criminal, the hate crime itself would not be punished.

As Robinson (2007) writes, the public needs to know that homosexuals - and all other hate crime victims - have an considerable history of victimization due to their difference, which leaves them "vulnerable" to future attacks of which they need legal "protection" against Robinson (2007) compares hate crime attacks to those of terrorist attacks as the attacks are against the minority group as a whole, not one individual of the street. Furthermore Robinson (2007) adds, state and federal laws protecting sexual orientation groups would not only protect homosexuals, but also they would protect heterosexuals. Additionally, Robinson (2007) notes even though research suggests that homosexuality is biologically caused, our laws allow for people to change their mind on religion and should allow people to change their minds on their sexual orientation. By not mandating criminal sanctions against those who commit hate crimes against homosexuals, or anyone for that matter, the government prohibits justice from being complete. As with any controversial issue though, opponents' opinions are abound.

One of the biggest arguments of opponents of sexual orientation being included in hate crime acts is that the inclusion would offer special treatment to homosexuals. According to Robinson (2007), opponents believe that America provides the same protections to every person, but hate crime laws would "deny equal protection under the law" if homosexuals were covered under hate crime laws. Furthermore, Robinson (2007) notes opponents see homosexual hate crime laws as being a way for this minority group to reach a moral acceptance within society. Robinson (2007) adds opponents believe homosexual hate crime laws would limit the freedom of speech in church and include the federal government in state mandated law enforcement agencies. According to Robinson (2007), opponents also worry that if protected by hate crime laws, homosexuals would be considered a "special class." With opponents fighting against federal hate crime laws, it makes it difficult to get laws passed to protect homosexuals.

Matthew Shepard did not live a long, plentiful life as many humans live. Matthew Shepard did not die because of old age or from fighting a disease all of his life. Matthew Shepard brutally died because he was homosexual. In 2007, the 110^th Congress introduced the Matthew Shepard Local Law Enforcement Hate Crimes Prevention Act of 2007. Matthew Shepard Local Law Enforcement Hate Crimes Prevention Act of 2007 would have made it a federally illegal to act out against homosexuals, and other minority groups. Additionally, Matthew Shepard Local Law Enforcement Hate Crimes Prevention Act of 2007 specified up to 10 years imprisonment or life imprisonment for violent acts and acts that resulted in death for those who acted out against any protected group. Furthermore, Matthew Shepard Local Law Enforcement Hate Crimes Prevention Act of 2007, allowed for the United States Attorney General to assist with any hate crime acts to ensure that they were fully prosecuted. As Luning (2009) writes, Congress passed the Matthew Shepard Local Law Enforcement Hate Crimes Prevention Act of 2007, but the law was dropped when President Bush "threatened to veto it." However, while this author could not find any other verification on Matthew Shepard Local Law Enforcement Hate Crimes Prevention Act currently being proposed, Lunning (2009) did add that the act is currently being proposed in Congress again, and President Obama said that he would sign it.

It is obvious that over half of the states wish to protect homosexuals just as African Americans are protected. However, the federal government has failed to adequately protect homosexuals from unique crimes solely against the group. Even though Matthew Shepard's proposed law was ready for President Bush to sign into law, our federal executive representative was not willing to protect the Matthew Shepard's of the future. In considering the opponents' rationales, like those of Mr. Bush, it is apparent that opponents do not want homosexuals to have equal protection under any of the United States' laws. As discussed in the next section, homosexuals' individual rights are key to most all of the issues concerning homosexuals.   

Individual Rights

American born citizens share equal rights and protections under the United States Constitution, or so some claim. As demonstrated above, not all groups of individuals are protected under our Constitution. American born homosexuals do not maintain all of the same rights and freedoms of other American communities. One of the most controversial issues in the United States right now is the issue of same sex marriages. As demonstrated by past, but recent, court decisions, it seems that these lawmakers are moving away from the infamous Bowers decision.

Bowers v. Hardwick (1986) encompassed a Georgia man who was charged with violating Georgia's law against sodomy. In Bowers (1986), Hardwick was charged with and found guilty of having consensual sodomy with his partner. According to Yatar (2003), the Court looked at this intimate action as a fundamental right not afforded to homosexuals. Furthermore, Yatar (2003) confirms that the Court justified state laws such as Georgia's that disallow what homosexuals can do in the privacy of their homes. In fact, Yatar (2003) notes that the Court's decision attempted to uphold the moral values of Christianity. As with the Boy Scouts of America discussed above, the Bowers' Court attempted to incorporate one religion upon the United States. The Bowers' Court (1986) specifically noted: "The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed." The Court looked at a broad array of "moral choices" instead of the issue at hand. Hardwick was not asking to go out and murder someone; he was asking for a private, fundamental right.

Seventeen years after Bowers, the Court revisited its prior decision in Lawrence v. Texas, 539 U.S. 558 (2003). According to Yatar (2003), until the Court looked at Lawrence, Texas statute forbidding only same-sex intercourse. Lawrence's Court (2003) discusses that Lawrence and his partner were charged with and convicted of having illegal, consensual sex under Texas law. However, unlike Bowers' court, Lawrence's Court looked at the situation differently. Lawrence's Court (2003) specifically made notation to the "demeaning" of homosexuals by making it illegal for them to perform such sexual acts in the home. Just as importantly, Lawrence's Court (2003) wrote: "The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons." Lawrence's Court (2003) also noted that since Bowers' decision, the number of states - originally 25 - prohibiting sodomy had been reduced to 13, with four of them directing the statute only at homosexuals. Lawrence's Court's (2003) final rationale is worth fully noting:

Bowers' rationale does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens concluded that (1) the fact a State's governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, and (2) individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of "liberty" protected by due process. That analysis should have controlled Bowers, and it controls here. Bowers was not correct when it was decided, is not correct today, and is hereby overruled. This case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners' right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention. Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the individual's personal and private life.

Through the eyes of Lawrence's Court, one can see a beginning to the end of all homosexual rights.

A final controversial individual right concerning homosexuals is the right to marry persons of the same sex. While the Court has yet to decide upon this issue, states have taken it upon themselves to decide this fundamental right. According to the National Conference of State Legislatures, or NCSL, (2009), only five states have laws that do not prohibit same sex marriages. More recently, however, the NCSL (2009) verifies that Iowa's Supreme Court ruled that same sex couples have the right to marry beginning later this week. According to the NCSL (2009), Massachusetts, Connecticut, and Vermont allow same sex marriages. While it is currently being appealed, the NCSL (2009) confirms that California allowed same sex marriages until the recent Proposition 8 was passed barring same sex marriages. Besides same sex marriages, the NCSL (2009) notes that Connecticut, Vermont, New Jersey and New Hampshire allow civil unions between individuals of the same sex, which allows spousal rights to the individuals.

Same sex marriage is an obvious issue that seems to be a division of the United States similar to what occurred prior to the Civil War. It is obvious that the majority of society does not want homosexuals to have the same individual rights that are afforded to other American citizens. Just as African Americans had to fight for their individual rights, it is apparent that the fight for homosexuals is going to be a long journey. However, with the Lawrence decision playing an important role in defining private relationships between same sex individuals, it would seem that once the Supreme Court hears a case it will be a decision similar to that of Lawrence.

Conclusion

This paper has looked at three of the issues that homosexuals face daily. Homosexuals are allowed to be defamed and discriminated against through our laws. By allowing various organizations and groups to discriminate against homosexuals, we, as society, are saying that it is not okay to be different in whatever aspect. When the law allows homosexuals to be discriminated against, lawmakers are indirectly saying it is okay to hurt homosexuals. September 11, 2001 brought forth an attack on the American way of life. It was not one person attacked; it was a whole nation of individuals different than those who attacked America. And, homosexuals are part of this nation.

The "War on Terrorism" was not journeyed for everyone but homosexuals; it was journeyed for the entire nation. When hate crimes are committed against homosexuals, our nation is saying it is okay to allow this war against homosexuals. Furthermore, through defamation, discrimination and hate crimes our nation adds to the individual rights that are being taken away from homosexuals. When it comes to citizens' individual rights as a whole, we, as a nation, are ultimately violating the 14^th Amendment of our United States Constitution:

            All persons born or naturalized in the United States, and subject to the jurisdiction   thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

References

Anti-Defamation League. (2008). Anti-Defamation League state hate crime statutory provisions. Retrieved March 30, 2009, from Web site: http://www.adl.org/99hatecrime/state_hate_crime_laws.pdf

Bowers v. Hardwick, 478 U. S. 186 (1986). Retrieved January 20, 2009, from Web site:

Federal Bureau of Investigations. (1998). Hate crime definition. Retrieved April 14, 2009, from Web site: http://www.fbi.gov/ucr/Cius_98/98crime/98cius16.pdf

Federal Bureau of Investigations. (2006). Uniform crime report table 4. Retrieved January 20, 2009 from, Web site: http://www.fbi.gov/ucr/hc2006/table4.html

Federal Bureau of Investigations. (2007). Uniform crime report table 4. Retrieved January 20, 2009 from, Web site: http://www.fbi.gov/ucr/hc2007/table_04.htm

Kelly, S. (2002). Scouts (dis)honor: The Supreme Court allows the Boy Scouts of America to discriminate against homosexuals in Boy Scouts of America v. Dale. Houston Law Review, 39, 244-274. Retrieved January 21, 2009, from Lexis Nexis database.

Lawrence v. Texas, 539 U.S. 558 (2003). Retrieved January 21, 2009, from Web site: http://www.law.cornell.edu/supct/html/02-102.ZS.html

Luning, E. (2009). Udall: 'Now is the time' for Congress to pass Matthew Shepard Act. The Colorado Independent. Retrieved April 14, 2009, from Web site: http://coloradoindependent.com/26430/udall-now-is-the-time-for-congress-to-pass-matthew-shepard-act

Matthew Shepard Local Law Enforcement Hate Crimes Prevention Act of 2007, S. 1105, 110^th Congress. (2007). Retrieved January 19, 2009, from Web site: http://thomas.loc.gov/cgi-bin/query/z?c110:S.1105:

National Conference of State Legislatures. (2009). Same sex marriage, civil unions and domestic partnerships. Retrieved April 1, 2009, from Web site: http://www.ncsl.org/programs/cyf/samesex.htm

Robinson, B. A. (2007). U.S. hate crimes: Ethical and civil rights concerns. Retrieved March 31, 2009, from Web site: http://www.religioustolerance.org/hom_hat5.htm

Romer v. Evans, 517 U.S. 620 (1996).

Setoodeh, R., Murr, A. & Ordonez, J. (2008). Young, Gay And Murdered; Kids are coming out younger, but are schools ready to handle the complex issues of identity and sexuality? For Larry King, the question had tragic implications. Newsweek, 152(4). Retrieved January 21, 2009, from Lexis Nexis database.

United States Constitution. (1776). Amendment XIV. Retrieved April 1, 2009, from Web site: http://www.law.cornell.edu/constitution/constitution.amendmentxiv.html

Westboro Baptist Church. (2009). God hates fags. Retrieved April 1, 2009, from Web site: http://www.godhatesfags.com/

Yatar, E. K. M.  (2003). Defamation, privacy, and the changing social status of homosexuality: Re-thinking Supreme Court gay rights jurisprudence. Law & Sexuality: A Review of Lesbian, Gay, Bisexual, and Transgender Legal Issues, 12, 119-158. Retrieved January 21, 2009, from Lexis Nexis database.

© Beardsley, 2009