Codified Discrimination: Inequality For Gays In America
Codified Discrimination: Inequality for Gays and Lesbians in America The United States of America was founded on a belief that “all men are created equal.” It goes to the very core of our identity as a nation, and influenced the shape of our society and culture. However, our country’s history has shown that we have not always lived up to that ideal. Time and time again, we have gone to the point of enacting laws that segregate and privilege one group of Americans over another. It took the Civil Rights struggle of the 1960s for us to grow and strike down the laws that denied equal rights and freedoms to Americans of color. Fifty years later, lesbian, gay, bisexual, and transgender (LGBT) Americans are facing a struggle that mirrors that of
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African-Americans: a struggle for equal rights against codified discrimination.
Historical Perspective The mid-twentieth century was a painful time for the United States. African-Americans all over the country waged a campaign of peaceful protest that was not without violence and bloodshed. The martyrs of that era are well known: Dr. Martin Luther King, Jr., Malcolm X, and many more. They all gave their lives in their fight against laws that considered them second-class citizens. Laws all over the country specifically created two groups of Americans, and thus enabled disparate treatment that in many cases was inordinately harsh. Eventually, their sacrifices were recognized, and America grew up as a country, moving towards the ideal of equality for all Americans. In modern society, such violence is nearly inconceivable, yet once again we are enacting laws that segregate and privilege. The struggle of gay and lesbian Americans against these laws is not as prominent as that of the 1960s Civil Rights movement, but the premise is the same.
Throughout our history, our government has rectified societal inequalities on a reactive basis. It took the 19th Amendment in 1920 to give women equal voting rights. The Civil Rights Act of 1964 finally prohibited discrimination on the basis of “race, color, or national origin.” It was not until 1990 that the Americans with Disabilities Act allowed persons with disabilities to be full participants in society. However, LGBT Americans remain as one group that has yet to be included in the principle of “equality under the law” (Newton 2). Although there are many ordinances and constitutional amendments that have extended some protections to LGBT citizens and couples, there are far more that either specifically deny certain rights, or fail to protect from societal discrimination. Even in jurisdictions that have moved toward equality and enacted protections for gays and lesbians, virulent opposition has overturned many of them in short order.
LGBT Issues in Discrimination
Not since the Jim Crow laws of the South have there been proscriptive and prohibitory laws that mandate discrimination. Although prohibitions on marriage and adoption may be the most visible, many states still have other statutes on their books. For example, sodomy laws have the effect of criminalizing the intimate behaviors of gay men. In addition, it has been barely a year since the prohibition on military service was overturned, though full implementation has yet to be achieved. Same-sex couples are also denied several tax and inheritance benefits that many opposite-sex couples take for granted, along with the ability to make major life, death and medical decisions for their partners. While the areas of housing, employment and public access may represent significant concern due to their nature as immediate, everyday needs, all of these additional inequality issues must be addressed (Newton 3-5).
The federal government has established protections based on race, national origin, ethnicity, gender, religion, age, and disability that extend to housing, employment and access to public accommodations, making it illegal to discriminate against any of these groups. Federally, however, sexual orientation has not been included under these protections (Mohr 93). In housing, for example, Kansas law allows a landlord to refuse to rent to a prospective tenant simply because they may know or even just suspect them to be gay or lesbian (Newton 2). A big part of the “American dream” has traditionally been the establishment of one’s home. Restricting where one may live has always been a means of establishing dominance of one group over another, the separation essentially marking the repressed group as worthy of less respect, as unclean, or as threatening. In denying gays and lesbians the opportunity to create and grow their home where they dream, opponents reinforce the perception that gays and lesbians are second-class citizens, exacerbating their social ostracism and exile (Mohr 95).
The workplace is also often a bastion of discrimination, both interpersonal harassment and systemic inequality. A 2008 poll conducted on behalf of Out & Equal Workplace Advocates evaluating workplace conditions for LGBT employees found that a majority of gay and lesbian respondents were subjected to some form of harassment at work. The harassment took many forms, including but not limited to inappropriate comments, denial of promotion or advancement, termination or being asked to resign, and exclusion of themselves or their partner from workplace functions (Newton 43). There is also a systemic gap in earnings between homosexuals and heterosexuals. Statistical analysis of United States employment data “has found that gay/bisexual men earn less than heterosexual men, with a range of 13 percent to 32 percent” (Badgett 29). This difference is not only in wages; other benefits such as health coverage, family/spousal leave, and pension benefits are restricted to apply only to the married or opposite-sex spouse and dependents, excluding same-sex partners.
Despite the challenges faced in the workplace, one bright point must be recognized. More and more large corporations are taking a stance to not tolerate discrimination in their workforces, adding sexual orientation to their nondiscrimination policies. In the past decade, the number of these companies has grown from 5 percent in 2006 to 98 percent in 2008, with more than half of them extending the protection to gender identity as well (Newton 44). At the urging of their employees, many of these companies are also using their influence to lobby for antidiscrimination and hate crime legislation. They are taking a progressive role in supporting what is often considered their most important asset, their employees, and placing them far ahead socially of their government counterparts.
Maintaining the Status Quo
Those who oppose inequality and propagate discrimination have used various reasons to justify their actions and the laws they have enacted. Although advocates of full equality would define it to include anti-discrimination protections in addition to the extension of rights including those relating to marriage and adoption, opponents claim that gays and lesbians are seeking “special” rights to protect a specific behavior (Goldberg-Hiller 47). They base this on the view that civil rights protections should only be applied to groups that have “experienced a long history of discrimination, [are] economically disadvantaged, and their identifying features (such as skin color) are ‘immutable characteristics’.” Since gays and lesbians can only affirm the first of these, “granting them such protection would be providing them with ‘special rights’” (Newton 47, from the American Civil Liberties Union).
Particularly with respect to marriage and adoption rights, much of the opposition has been framed in religious, moral, and sometimes even in anthropological and biological terms. Stanton and Maier write that “marriage is about setting norms for society for how we structure sexual relationships, for creating cooperative and respectful domestic relationships between the sexes, and for forming families for raising children” (34-35). Those who share this view argue that, at its core, the purpose of marriage is for procreation and the rearing of the next generation of the human species. “Everyone enters humanity through the gate of heterosexuality, with the union of male sperm and female egg being the mandatory portal,” and marriage is the legal recognition of this (Stanton and Maier 29). Marriage is intended to be the coming together of two parts to make a whole and create something bigger than the individual parts. This is supported with simple analogies: a violin and bow complement each other to make music; an electrical plug and socket combine to power equipment; and “same sex unions do not make a human whole; they are missing a necessary human ingredient: either male or female” (Stanton and Maier 25). Same-sex couples must seek out the services of a third party to acquire children by means of adoption, artificial insemination or surrogacy in order to overcome a level of inherent sterility as part of their relationship. However, heterosexual couples who are not able to produce children themselves often adopt as well, satisfying the need for a mother and father for a child that does not have them. They should not be disqualified from marriage based on exceptional physiological circumstances (Stanton and Maier 29).
There are also those who have sought to shut down the conversation before it has even really begun. Although it was later overturned, in 1992 Colorado enacted Amendment 2, explicitly prohibiting the state and any jurisdiction therein from exacting any law that would enable LGBT Coloradoans to “claim any minority status, quota preferences, protected status or claim of discrimination.” Although the intent was to calm the heated rhetoric and strong opinions on both sides, it also created an implied impossible standard, that “any group able to protect itself through antidiscrimination statutes does not really need legal protection after all” (Goldberg-Hiller 50-51).
"Separate but Equal” Today
Twenty-six states have passed statutes or constitutional amendments that ban same-sex couples from marrying. In addition, the federal Defense of Marriage Act continues to be in force, restricting marriage to one man and one woman. Since many federal benefits are based on marriage, this precludes same-sex couples from receiving most federal tax, inheritance, entitlement and survivor benefits. Yet to date, six states and the District of Columbia explicitly permit same-sex couples to marry, and bestow upon them all of the rights and obligations that opposite-sex married couples enjoy. Several other states and local jurisdictions have endeavored to compromise and have approved “marriage equivalents” such as civil unions and domestic partnerships. In most cases, the intention is that the difference between these equivalents and marriage only lies in the name it is called. Unfortunately, these inconsistencies have led to situations in which the rights that are accorded a couple in one state are not recognized in another, creating legal challenges and hardship.
Advocates of these laws claim that they need to protect the fundamental sanctity and definition of the institution of marriage. Marriage is a construct that sets societal norms in structuring relationship, socially approving and encouraging sexual intercourse and the creation of the next generation (Stanton and Maier 35). As many same-sex couples seek the same social, economic and tax benefits enjoyed by heterosexual couples, plus the recognition of their long-term commitment, proponents of defining marriage say that they are not discriminating. They are not denying the constitutional right of homosexuals to marry. They are simply preventing individuals from “redefining marriage by marrying a person of the same sex.” If a municipal clerk denies two individuals a marriage license solely because they are homosexual, that would rightly be considered discrimination. However, under this argument, the clerk would be justified in denying a same-sex couple a license on the grounds that they do not meet the statutory requirement that the two parties be of opposite sex (Stanton and Maier 33).
The doctrine of “separate but equal” harkens back to the United States Supreme Court case Plessy v. Ferguson, which permitted Louisiana railway companies to provide “separate but equal” accommodations to blacks and whites on their trains. This doctrine was eventually broken during the Civil Rights era when blacks rebelled against separate facilities on public buses, in restaurants, and even at water fountains. However, the notion has been resurrected in a new form with the creation of the substitutes to marriage like civil unions and domestic partnerships. These alternatives are changing the tone of the debate in America. Historically, there has been resistance to any form of recognition at all for same-sex relationships. The advent of civil unions has shifted the opinion towards a willingness to grant legal recognition and equal rights to these commitments so long as they are not called “marriage” (Moats 250).
In one case that illustrates the disparate opinions and applications of law in different areas of the country, a Georgia woman traveled to Vermont and entered into a civil union with her partner. One of the conditions of her divorce from her husband prohibited their children from living with either parent should they share their home with an unmarried partner. Upon returning home, she sued for custody of her children based on the legal recognition of her new relationship. The Georgia courts have ruled against her, finding that “not only is a civil union not a marriage, but it is essentially a nothing – a legal family status that nevertheless brings no acknowledgment, respect, or legal weight whatsoever in the state of Georgia.” In addition, the Georgia Court of Appeals ruled that “Georgia’s anti-gay ‘defense of marriage’ law, which makes marriage available solely to a man and woman, forbids the court to accord a civil union any respect, whether as a marriage or even just as a marker of familial relationship and commitment” (Wolfson 126-127). Though limited in jurisdiction to those who reside within each state’s borders, civil unions have granted and continue to maintain legal status and important benefits for LGBT couples. However, as in this case, civil union rights are not completely equal to marriage and are often considered better than nothing at all, couples often find frustration in the lack of uniform acceptance from state to state.
There is a flawed assumption that these marriage-like recognitions of same-sex couples effectively treat them the same as their opposite-sex counterparts. However, the original goal in most cases was that full marriage should be accorded to same-sex couples, and these substitutes were simply “a compromise intended to regulate the status of same-sex couples separately from (opposite-sex) marriage” (Merin 291). Though unintended, this must be recognized as a form of structured discrimination, and is “not a commitment to recognize gay and lesbian couples as equals in all spheres of civil and social life; they signal mere toleration of these relationships, rather than acceptance” (Merin 306). Just as with the separate facilities in the American south, these marriage-like institutions seek to reduce inequality, and yet at the same time inadvertently perpetuate it. “Thus, domestic partnership legislation is a compromise that codifies a second-class status, because it in fact treats one group of citizens in a separate and inferior manner despite their identical circumstances” (Merin 307). Essentially, failing to allow same-sex couples to marry without equivocation or condition fails to recognize “the only justification for withholding the right to marry [is] bias, and that [is] no justification at all” (Moats 250). Those six states and the District of Columbia that have enacted full same-sex marriage rights are the only ones that have, by this purist of standards, managed to move above the threshold of discrimination in this way.
Looking Forward
After being exclusively supportive of civil unions, in a recent television interview President Barack Obama recently voiced his personal support for allowing same-sex couples to marry, creating a political firestorm as the first sitting President to do so. In coming to his conclusion, he cited as influences the recognition of generational changes of opinion, consultations with family and friends, as well as his desire to advocate for the equal treatment of gay and lesbian friends, staffers and colleagues. In addition, he attributed significant guidance to his Christian faith (Roberts). This is in contrast to the position held by many black church leaders who still believe homosexuality is a sin, citing the Bible to preach an opposition to same-sex unions to their congregations. Yet the President also quoted the biblical tenet of the “Golden Rule” to treat others as they wish to be treated, and that all people are equal as the children of God. This begs the question of whether it is justified for black church leaders to use scripture to discriminate when it was used as justification to enslave their ancestors (Blake).
When the Founding Fathers conceived of the concept that “all men are created equal,” it is unlikely that they envisioned the turbulent path that America would take in pursuit of that ideal. Americans take pride in learning and growing from their mistakes. We take pride in our ethos of freedom and equality in our modern society, and at the same time continue to perpetuate discrimination against an entire facet of our population. However, our societal opinion is continually evolving. Even the President, often called the “leader of the free world,” can change his views and take the controversial stand in favor of equality. It took significant public pressure to force our government to recognize the equality of all citizens in the various cases of sex, race, and disability. Yet we often look back and wonder how different our society would be today if not for laws like the 19th Amendment, Civil Rights Act and Americans with Disabilities Act. Despite these gains, until LGBT Americans are afforded without equivocation or restriction all of the rights, obligations and responsibilities that the remainder of society often takes for granted, truly realizing the principle of “equal protection under the law” shall remain unfulfilled and never become more than simply a hollow phrase.
Works Cited
Badgett, M.V.
Lee. “Discrimination Based On Sexual Orientation: A Review of the Literature in Economics and Beyond.” Sexual Orientation Discrimination: An International Perspective. Eds. M.V. Lee Badgett and Jefferson Frank. London: Routledge, 2007. Print.
Blake, John. "Is the Black Church Guilty of Spiritual Hypocrisy in Same-sex Marriage Debate?" CNN.com Belief Blog. Cable News Network, 12 May 2012. Web. 12 May 2012. .
Goldberg-Hiller, Jonathan. The Limits to Union: Same-Sex Marriage and the Politics of Civil Rights. Ann Arbor: The University of Michigan Press, 2002. Print.
Moats, David. Civil Wars: The Battle for Gay Marriage. Orlando: Harcourt, Inc., 2004. Print.
Merin, Yuval. Equality for Same-Sex Couples: The Legal Recognition of Gay Partnerships in Europe and the United States. Chicago: The University of Chicago Press, 2002. Print.
Mohr, Richard D. The Long Arc of Justice: Lesbian and Gay Marriage, Equality, and Rights. New York: Columbia University Press, 2005. Print.
Newton, David E. Gay and Lesbian Rights: A Reference Handbook. 2nd ed. Santa Barbara: ABC-CLIO, LLC, 2009. Print.
Plessy v. Ferguson. 163 U.S. 537. United States Supreme Court. 18 May 1896. US Supreme Court Center. Justia. Web. 23 Apr. 2012.
.
Roberts, Robin. "Obama Supports Gay Marriage." World News with Diane Sawyer. ABC News. National Broadcast, 05 May 2012. ABCNews.com. ABC News Internet Ventures, 05 May 2012. Web. 11 May 2012. .
Stanton, Glenn T., and Bill Maier. Marriage on Trial: The Case Against Same-Sex Marriage and Parenting. Downers Grove: InterVarsity Press, 2004. Print.
Wolfson, Evan. Why Marriage Matters: America, Equality and Gay People’s Right to Marry. New York: Simon & Schuster, 2004. Print.
African-Americans: a struggle for equal rights against codified discrimination.
Historical Perspective The mid-twentieth century was a painful time for the United States. African-Americans all over the country waged a campaign of peaceful protest that was not without violence and bloodshed. The martyrs of that era are well known: Dr. Martin Luther King, Jr., Malcolm X, and many more. They all gave their lives in their fight against laws that considered them second-class citizens. Laws all over the country specifically created two groups of Americans, and thus enabled disparate treatment that in many cases was inordinately harsh. Eventually, their sacrifices were recognized, and America grew up as a country, moving towards the ideal of equality for all Americans. In modern society, such violence is nearly inconceivable, yet once again we are enacting laws that segregate and privilege. The struggle of gay and lesbian Americans against these laws is not as prominent as that of the 1960s Civil Rights movement, but the premise is the same.
Throughout our history, our government has rectified societal inequalities on a reactive basis. It took the 19th Amendment in 1920 to give women equal voting rights. The Civil Rights Act of 1964 finally prohibited discrimination on the basis of “race, color, or national origin.” It was not until 1990 that the Americans with Disabilities Act allowed persons with disabilities to be full participants in society. However, LGBT Americans remain as one group that has yet to be included in the principle of “equality under the law” (Newton 2). Although there are many ordinances and constitutional amendments that have extended some protections to LGBT citizens and couples, there are far more that either specifically deny certain rights, or fail to protect from societal discrimination. Even in jurisdictions that have moved toward equality and enacted protections for gays and lesbians, virulent opposition has overturned many of them in short order.
LGBT Issues in Discrimination
Not since the Jim Crow laws of the South have there been proscriptive and prohibitory laws that mandate discrimination. Although prohibitions on marriage and adoption may be the most visible, many states still have other statutes on their books. For example, sodomy laws have the effect of criminalizing the intimate behaviors of gay men. In addition, it has been barely a year since the prohibition on military service was overturned, though full implementation has yet to be achieved. Same-sex couples are also denied several tax and inheritance benefits that many opposite-sex couples take for granted, along with the ability to make major life, death and medical decisions for their partners. While the areas of housing, employment and public access may represent significant concern due to their nature as immediate, everyday needs, all of these additional inequality issues must be addressed (Newton 3-5).
The federal government has established protections based on race, national origin, ethnicity, gender, religion, age, and disability that extend to housing, employment and access to public accommodations, making it illegal to discriminate against any of these groups. Federally, however, sexual orientation has not been included under these protections (Mohr 93). In housing, for example, Kansas law allows a landlord to refuse to rent to a prospective tenant simply because they may know or even just suspect them to be gay or lesbian (Newton 2). A big part of the “American dream” has traditionally been the establishment of one’s home. Restricting where one may live has always been a means of establishing dominance of one group over another, the separation essentially marking the repressed group as worthy of less respect, as unclean, or as threatening. In denying gays and lesbians the opportunity to create and grow their home where they dream, opponents reinforce the perception that gays and lesbians are second-class citizens, exacerbating their social ostracism and exile (Mohr 95).
The workplace is also often a bastion of discrimination, both interpersonal harassment and systemic inequality. A 2008 poll conducted on behalf of Out & Equal Workplace Advocates evaluating workplace conditions for LGBT employees found that a majority of gay and lesbian respondents were subjected to some form of harassment at work. The harassment took many forms, including but not limited to inappropriate comments, denial of promotion or advancement, termination or being asked to resign, and exclusion of themselves or their partner from workplace functions (Newton 43). There is also a systemic gap in earnings between homosexuals and heterosexuals. Statistical analysis of United States employment data “has found that gay/bisexual men earn less than heterosexual men, with a range of 13 percent to 32 percent” (Badgett 29). This difference is not only in wages; other benefits such as health coverage, family/spousal leave, and pension benefits are restricted to apply only to the married or opposite-sex spouse and dependents, excluding same-sex partners.
Despite the challenges faced in the workplace, one bright point must be recognized. More and more large corporations are taking a stance to not tolerate discrimination in their workforces, adding sexual orientation to their nondiscrimination policies. In the past decade, the number of these companies has grown from 5 percent in 2006 to 98 percent in 2008, with more than half of them extending the protection to gender identity as well (Newton 44). At the urging of their employees, many of these companies are also using their influence to lobby for antidiscrimination and hate crime legislation. They are taking a progressive role in supporting what is often considered their most important asset, their employees, and placing them far ahead socially of their government counterparts.
Maintaining the Status Quo
Those who oppose inequality and propagate discrimination have used various reasons to justify their actions and the laws they have enacted. Although advocates of full equality would define it to include anti-discrimination protections in addition to the extension of rights including those relating to marriage and adoption, opponents claim that gays and lesbians are seeking “special” rights to protect a specific behavior (Goldberg-Hiller 47). They base this on the view that civil rights protections should only be applied to groups that have “experienced a long history of discrimination, [are] economically disadvantaged, and their identifying features (such as skin color) are ‘immutable characteristics’.” Since gays and lesbians can only affirm the first of these, “granting them such protection would be providing them with ‘special rights’” (Newton 47, from the American Civil Liberties Union).
Particularly with respect to marriage and adoption rights, much of the opposition has been framed in religious, moral, and sometimes even in anthropological and biological terms. Stanton and Maier write that “marriage is about setting norms for society for how we structure sexual relationships, for creating cooperative and respectful domestic relationships between the sexes, and for forming families for raising children” (34-35). Those who share this view argue that, at its core, the purpose of marriage is for procreation and the rearing of the next generation of the human species. “Everyone enters humanity through the gate of heterosexuality, with the union of male sperm and female egg being the mandatory portal,” and marriage is the legal recognition of this (Stanton and Maier 29). Marriage is intended to be the coming together of two parts to make a whole and create something bigger than the individual parts. This is supported with simple analogies: a violin and bow complement each other to make music; an electrical plug and socket combine to power equipment; and “same sex unions do not make a human whole; they are missing a necessary human ingredient: either male or female” (Stanton and Maier 25). Same-sex couples must seek out the services of a third party to acquire children by means of adoption, artificial insemination or surrogacy in order to overcome a level of inherent sterility as part of their relationship. However, heterosexual couples who are not able to produce children themselves often adopt as well, satisfying the need for a mother and father for a child that does not have them. They should not be disqualified from marriage based on exceptional physiological circumstances (Stanton and Maier 29).
There are also those who have sought to shut down the conversation before it has even really begun. Although it was later overturned, in 1992 Colorado enacted Amendment 2, explicitly prohibiting the state and any jurisdiction therein from exacting any law that would enable LGBT Coloradoans to “claim any minority status, quota preferences, protected status or claim of discrimination.” Although the intent was to calm the heated rhetoric and strong opinions on both sides, it also created an implied impossible standard, that “any group able to protect itself through antidiscrimination statutes does not really need legal protection after all” (Goldberg-Hiller 50-51).
"Separate but Equal” Today
Twenty-six states have passed statutes or constitutional amendments that ban same-sex couples from marrying. In addition, the federal Defense of Marriage Act continues to be in force, restricting marriage to one man and one woman. Since many federal benefits are based on marriage, this precludes same-sex couples from receiving most federal tax, inheritance, entitlement and survivor benefits. Yet to date, six states and the District of Columbia explicitly permit same-sex couples to marry, and bestow upon them all of the rights and obligations that opposite-sex married couples enjoy. Several other states and local jurisdictions have endeavored to compromise and have approved “marriage equivalents” such as civil unions and domestic partnerships. In most cases, the intention is that the difference between these equivalents and marriage only lies in the name it is called. Unfortunately, these inconsistencies have led to situations in which the rights that are accorded a couple in one state are not recognized in another, creating legal challenges and hardship.
Advocates of these laws claim that they need to protect the fundamental sanctity and definition of the institution of marriage. Marriage is a construct that sets societal norms in structuring relationship, socially approving and encouraging sexual intercourse and the creation of the next generation (Stanton and Maier 35). As many same-sex couples seek the same social, economic and tax benefits enjoyed by heterosexual couples, plus the recognition of their long-term commitment, proponents of defining marriage say that they are not discriminating. They are not denying the constitutional right of homosexuals to marry. They are simply preventing individuals from “redefining marriage by marrying a person of the same sex.” If a municipal clerk denies two individuals a marriage license solely because they are homosexual, that would rightly be considered discrimination. However, under this argument, the clerk would be justified in denying a same-sex couple a license on the grounds that they do not meet the statutory requirement that the two parties be of opposite sex (Stanton and Maier 33).
The doctrine of “separate but equal” harkens back to the United States Supreme Court case Plessy v. Ferguson, which permitted Louisiana railway companies to provide “separate but equal” accommodations to blacks and whites on their trains. This doctrine was eventually broken during the Civil Rights era when blacks rebelled against separate facilities on public buses, in restaurants, and even at water fountains. However, the notion has been resurrected in a new form with the creation of the substitutes to marriage like civil unions and domestic partnerships. These alternatives are changing the tone of the debate in America. Historically, there has been resistance to any form of recognition at all for same-sex relationships. The advent of civil unions has shifted the opinion towards a willingness to grant legal recognition and equal rights to these commitments so long as they are not called “marriage” (Moats 250).
In one case that illustrates the disparate opinions and applications of law in different areas of the country, a Georgia woman traveled to Vermont and entered into a civil union with her partner. One of the conditions of her divorce from her husband prohibited their children from living with either parent should they share their home with an unmarried partner. Upon returning home, she sued for custody of her children based on the legal recognition of her new relationship. The Georgia courts have ruled against her, finding that “not only is a civil union not a marriage, but it is essentially a nothing – a legal family status that nevertheless brings no acknowledgment, respect, or legal weight whatsoever in the state of Georgia.” In addition, the Georgia Court of Appeals ruled that “Georgia’s anti-gay ‘defense of marriage’ law, which makes marriage available solely to a man and woman, forbids the court to accord a civil union any respect, whether as a marriage or even just as a marker of familial relationship and commitment” (Wolfson 126-127). Though limited in jurisdiction to those who reside within each state’s borders, civil unions have granted and continue to maintain legal status and important benefits for LGBT couples. However, as in this case, civil union rights are not completely equal to marriage and are often considered better than nothing at all, couples often find frustration in the lack of uniform acceptance from state to state.
There is a flawed assumption that these marriage-like recognitions of same-sex couples effectively treat them the same as their opposite-sex counterparts. However, the original goal in most cases was that full marriage should be accorded to same-sex couples, and these substitutes were simply “a compromise intended to regulate the status of same-sex couples separately from (opposite-sex) marriage” (Merin 291). Though unintended, this must be recognized as a form of structured discrimination, and is “not a commitment to recognize gay and lesbian couples as equals in all spheres of civil and social life; they signal mere toleration of these relationships, rather than acceptance” (Merin 306). Just as with the separate facilities in the American south, these marriage-like institutions seek to reduce inequality, and yet at the same time inadvertently perpetuate it. “Thus, domestic partnership legislation is a compromise that codifies a second-class status, because it in fact treats one group of citizens in a separate and inferior manner despite their identical circumstances” (Merin 307). Essentially, failing to allow same-sex couples to marry without equivocation or condition fails to recognize “the only justification for withholding the right to marry [is] bias, and that [is] no justification at all” (Moats 250). Those six states and the District of Columbia that have enacted full same-sex marriage rights are the only ones that have, by this purist of standards, managed to move above the threshold of discrimination in this way.
Looking Forward
After being exclusively supportive of civil unions, in a recent television interview President Barack Obama recently voiced his personal support for allowing same-sex couples to marry, creating a political firestorm as the first sitting President to do so. In coming to his conclusion, he cited as influences the recognition of generational changes of opinion, consultations with family and friends, as well as his desire to advocate for the equal treatment of gay and lesbian friends, staffers and colleagues. In addition, he attributed significant guidance to his Christian faith (Roberts). This is in contrast to the position held by many black church leaders who still believe homosexuality is a sin, citing the Bible to preach an opposition to same-sex unions to their congregations. Yet the President also quoted the biblical tenet of the “Golden Rule” to treat others as they wish to be treated, and that all people are equal as the children of God. This begs the question of whether it is justified for black church leaders to use scripture to discriminate when it was used as justification to enslave their ancestors (Blake).
When the Founding Fathers conceived of the concept that “all men are created equal,” it is unlikely that they envisioned the turbulent path that America would take in pursuit of that ideal. Americans take pride in learning and growing from their mistakes. We take pride in our ethos of freedom and equality in our modern society, and at the same time continue to perpetuate discrimination against an entire facet of our population. However, our societal opinion is continually evolving. Even the President, often called the “leader of the free world,” can change his views and take the controversial stand in favor of equality. It took significant public pressure to force our government to recognize the equality of all citizens in the various cases of sex, race, and disability. Yet we often look back and wonder how different our society would be today if not for laws like the 19th Amendment, Civil Rights Act and Americans with Disabilities Act. Despite these gains, until LGBT Americans are afforded without equivocation or restriction all of the rights, obligations and responsibilities that the remainder of society often takes for granted, truly realizing the principle of “equal protection under the law” shall remain unfulfilled and never become more than simply a hollow phrase.
Works Cited
Badgett, M.V.
Lee. “Discrimination Based On Sexual Orientation: A Review of the Literature in Economics and Beyond.” Sexual Orientation Discrimination: An International Perspective. Eds. M.V. Lee Badgett and Jefferson Frank. London: Routledge, 2007. Print.
Blake, John. "Is the Black Church Guilty of Spiritual Hypocrisy in Same-sex Marriage Debate?" CNN.com Belief Blog. Cable News Network, 12 May 2012. Web. 12 May 2012. .
Goldberg-Hiller, Jonathan. The Limits to Union: Same-Sex Marriage and the Politics of Civil Rights. Ann Arbor: The University of Michigan Press, 2002. Print.
Moats, David. Civil Wars: The Battle for Gay Marriage. Orlando: Harcourt, Inc., 2004. Print.
Merin, Yuval. Equality for Same-Sex Couples: The Legal Recognition of Gay Partnerships in Europe and the United States. Chicago: The University of Chicago Press, 2002. Print.
Mohr, Richard D. The Long Arc of Justice: Lesbian and Gay Marriage, Equality, and Rights. New York: Columbia University Press, 2005. Print.
Newton, David E. Gay and Lesbian Rights: A Reference Handbook. 2nd ed. Santa Barbara: ABC-CLIO, LLC, 2009. Print.
Plessy v. Ferguson. 163 U.S. 537. United States Supreme Court. 18 May 1896. US Supreme Court Center. Justia. Web. 23 Apr. 2012.
.
Roberts, Robin. "Obama Supports Gay Marriage." World News with Diane Sawyer. ABC News. National Broadcast, 05 May 2012. ABCNews.com. ABC News Internet Ventures, 05 May 2012. Web. 11 May 2012. .
Stanton, Glenn T., and Bill Maier. Marriage on Trial: The Case Against Same-Sex Marriage and Parenting. Downers Grove: InterVarsity Press, 2004. Print.
Wolfson, Evan. Why Marriage Matters: America, Equality and Gay People’s Right to Marry. New York: Simon & Schuster, 2004. Print.