Civil Rights for LGBT Gay Marriage

Stacy E. Kratz, LCSW, CAP

Issue, Policy, Problem

In socio-political countries such as the United States, the strategic and tactical choices existing to defend one's rights and advocate for social change are common. Activists can demonstrate on the streets, or publish and hand out their stories candidly to publicize and air their complaints. They can put together a legal case, and ask the court to order the state or another party to correct the wrong. They can lobby legislators to pass a bill, or alter an existing law, or, in some places, campaign voters directly to decide the issue at the polls. Such strategic and tactical options are accessible to activists, because they have access to, and are able to make use of formal democratic processes and formal guarantees of civil rights. These processes and guarantees allow them to elect politicians who stand for their interests, or resort to a judiciary alleged to be independent. Additionally, these options are accessible, because they are culturally accepted, and expected. Groups of people who feel marginalized can come together, exercise their rights to express their complaints, and use such methods to protect their rights (Chua, 2011).

One of these groups that feel marginalized is that of the lesbian, gay, and bisexual and transgender (LGBT). The ACLU LGBT Project works for an America free of discrimination based on sexual orientation and gender identity. "This means an environment where lesbian, gay, and bisexual and transgender (LGBT) people can live openly, where identities, relationships and families are respected, and where there is fair treatment on the job, in schools, housing, public places, health care, and government programs. The mission of the LGBT Project is the creation of a society in which LGBT people enjoy the constitutional rights of equality, privacy and personal autonomy, and freedom of expression and association" (LGBT Rights, n.d.).

The ACLU has a long history defending the LGBT community. They brought their first LGBT rights case in 1936 and founded the LGBT Project in 1986. The ACLU's LGBT rights strategy is founded on the belief that fighting for equal rights is not just persuading judges and government officials, but in the end changing the way society thinks about LGBT people. In order to end discrimination, the ACLU seeks both to alter the law and to persuade Americans that sexual orientation and gender identity discrimination is wrong. "The ACLU carries out this work in five priority areas: Basic Rights and Liberties, Parenting, Relationships and Marriage, Youth and Schools, and Transgender Discrimination" (LGBT Rights, n.d.).

Today the ACLU brings more LGBT cases and advocacy initiatives than any other national organization. With their reach into the courts and legislatures of every state, there is no other organization that can match their record of making progress both in the courts of law and in the court of public opinion (LGBT Rights, n.d.).

History and Scope of Issue

Civil rights include basic human rights like the freedom of speech and organization, liberty, and equal treatment. Because these are basic rights, every citizen should have them and not be denied based on sex, race, or religious belief. Even though it has been established that homosexuality has been around since humans began documenting human history, the framers of the Constitution did not incorporate the unconstitutionality of discrimination against citizens on the base of sexual preference, therefore, making this discrimination completely legal. "Inspired by the African-American Civil Rights Movement, homosexuals in America began to organize themselves and to fight for the equality and the justice they did not have yet. With the rise of gay rights activists, gay-rights opponents appeared, and the issue about homosexuals' rights turned into a controversial, legal battle, which today is still fought with neither party entirely winning" (Doney, 2011).

Questions in regards to the civil rights of minorities in the United States, especially racial, ethnic, and sexual minorities, are routinely debated and voted on by elected representatives, adjudicated by the judiciary, and placed on ballots for public votes. Ballot initiatives that target or disproportionately affect a specific minority group have been shown to increase the salience of the election for that group and to encourage their involvement in political and electoral activities. Ballot initiatives also create a risk of majority tyranny through institutionalized prejudice. As of December 2008, 46 states and the U.S. federal government had excluded or prohibited the recognition of civil marriage for same-sex couples by statute, judicial ruling, or amendment to their state constitutions. This total included the 29 states that had passed by ballot amendments to their state constitutions a definition of marriage as a legal union between one man...

Some of these amendments additionally prohibited recognition of relationships similar to marriage or extension of the legal incidents of marriage to unmarried individuals, like domestic partnerships (Riggle, Rostosky & Horne, 2009). Currently there are 8 states that provide same-sex couples with access to civil marriage. These states include: Vermont, New Hampshire, Massachusetts, Connecticut, New York, Washington, D.C., Iowa and Washington (States that Allow Gay Marriage, n.d.).
Russell (2004) has put forth that when a particular group is the subject of political dispute, group members frequently show a variety of negative outcomes including anxiety, depression, alienation, fear, and anger. In a study of same-sex couples it was found that people banned from entering into a civil marriage, perceived their status to be that of second-class citizens. Participants in both of theses studies reported that messages from a variety of sources contributed to these negative feelings and perceptions (Riggle, Rostosky & Horne, 2009).

The stigmatized status of LGBT people in the context of a negative public debate over marriage amendments may worsen minority stress and decrease well-being. Increased minority stress is a risk factor for negative psychological outcomes, including depression. It has been argued that the passage of a marriage amendment is a prejudicial event associated with increased levels of psychological distress among LGBT residents of those states in which it takes place (Riggle, Rostosky & Horne, 2009).

Perspectives & Analysis of Policy

In the United States the gay relationship rights debate is currently framed in terms of equal rights and the protections provided by the 14th Amendment. However, there are some who have conjectured that gay marriage legislation, specifically, could be advanced by reframing this debate as a religious right. This reframing would be based on the foundation that freedom from government-imposed religious belief or practice and liberty of conscience as central to religious liberty under the First Amendment (DeLaet & Caufield, 2008). Therefore, instead of focusing solely on equal rights, this change to the debate would emphasize that all individuals have religious freedom and that the government should not be able to impose their religious views on same-sex couples and their supporters. However, it is unknown as to whether this change would increase the passage of pro-gay relationship rights legislation within direct democracy contests. Even so, DeLaet & Caufield (2008) speculate that this change could be very influential in the United States. It would show that all individuals, including same-sex couples, churches, and religious people, who support same-sex marriage are discriminated against if the government chooses to support certain religious rights over others.

Judicial decisions defending the rights of lesbian, gay, bisexual, and transgender (LGBT) persons have repeatedly been criticized for going too far, too fast. It is no surprise that opponents of gay rights have condemned these decisions as instances of illegitimate judicial activism, but some supporters of gay rights have also condemned them as tactically unwise. In doing so, these supporters have stood on a long-standing scholarly argument that rights-based litigation strategies are unsuccessful at best and counterproductive at worst. In the gay rights environment, one version of this argument has been predominantly prominent. It is felt that even when rights supporters win in court, those victories unavoidably spark a political backlash, with the voters and their elected representatives overturning the judicial decisions and putting into place regressive policies that are worse than the status quo (Keck, 2009).

Judicial decisions supporting LGBT rights have continually fueled political counter recruitment, but that has not been their only or even their most well-known effect. To the contrary, litigation has contributed in an assortment of ways to expanding the rights of LGBT persons to act on their sexual identities exclusive of government interference, to be protected from unpleasant discrimination, and to shape family relationships that are acknowledged by the state (Keck, 2009).

Impact of Policy & Analysis

Even if the general public has not turned against gay rights, the courtroom victories may have provoked regressive policy change that is, legislative actions that left LGBT rights advocates worse off than they were at the beginning. In support of this claim, backlash proponents repeatedly emphasize that 45 states have banned the recognition of Same Sex Marriage (SSM), with 27 of those states enshrining the ban in their state constitutions. There was no state recognized SSM prior to the onset of litigation, so the statutory bans effected no actual change of policy. The constitutional bans have made it more difficult for SSM advocates to achieve…