The ACLU's role in advancing LGBT civil rights and marriage equality

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 and one woman. 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).

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 their desired policy change, but in the vast majority of these 27 states, the odds that either the legislature or the courts would have legalized SSM were pretty low from the start (Keck, 2009).

Direct democracy has resulted in very different outcomes in gay relationship rights contests in the United States and Switzerland. In the United States, direct democracy increasingly impeded pro-gay relationship rights legislation; in Switzerland direct democracy has promoted pro-gay relationship rights legislation. Direct democracy, unlike representative democracy, occurs when citizens vote on the laws themselves. In the United States these contests usually only occur at the state or local level of government when citizens are given the chance to vote on initiatives, referendums, or propositions, while in Switzerland they are more prevalent (Doney, 2011).

Many policy makers argue that direct democracy creates a tyranny of the majority in which the majority impedes the rights of minority citizens. However, others disagree and cite that these contests advance gay rights as seen in Switzerland. This created the dilemma of why direct democracy hindered gay relationship rights legislation in the United States but advanced similar legislation in Switzerland, and what factors potentially created this variation in outcome (Doney, 2011).

Judgment

The Gay Rights Movement is rooted in what are known as the Stonewall riots. These riots marked the first major attempt of gays to organize themselves and to resist discrimination. In the summer of 1969 policemen in New York started to raid unlicensed bars, ensuing in closings of five gay bars with minor street turbulence. "The Stonewall Inn, an unlicensed and Mafia-operated bar in Greenwich Village, was raided by nine policemen in the early mornings of June 28th 1969. As the policemen arrested and escorted five employees and customers, they faced an unexpectedly angry and violent mob outside the Stonewall Inn, yelling, throwing coins, rocks, beer bottles, and bricks at the policemen. During the following forty-five minutes, the nine policemen were involved in a violent struggle, in which the protesters were beaten by policemen, and in which the crowd tried to set the bar with the policemen inside on fire. As police reinforcement arrived, the crowd which had already rose to about 400 angry protesters, finally spread out, but re-gathered for two additional nights around the then-closed Stonewall Inn to protest against the police's discrimination of gay bars" (Nguyen, 2012).

At present, the United States is divided on the issue of same-sex marriage: some states have permitted it while others have prohibited it. The debate over same-sex marriage is compared to the house divided metaphor and slavery, discussing how recent events illustrate this conflict and the incompatibility of the two sides. There are many people who argue for protecting marriage between a man and a woman as a fundamental civil and human right in order to protect human dignity and establish a foundation of virtue upon which to base individual rights and liberties as well as uphold the separation of powers inherent in the American constitutional form of government. While on the other side there are those who argue that marriage is a personal decision and should be one that everyone should be able to make on their own. This issue is not going to just go away; dual-gender and same-sex marriages will inevitably clash and will not be able to coexist for any significant amount of time. Efforts to mitigate this conflict should be taken now, and the institution of marriage should be shored up (Wardle, 2010).

The subject of mental health of youth and young adults who are sexual orientation or gender identity minorities is timely as America plans for healthcare reform. Provisions have been made in proposed legislation to include new data collection tools to track diseases and procedures by sexual orientation or gender identity for the first time in the nation's history. Mechanisms to be able to identify and track aggregate data by sexual orientation and gender identity will enable health planners, clinicians, and researchers new capacities to gauge the health status of LGBT youth and to better plan treatment interventions to improve their health and well-being. The plan also includes a provision for partners to share tax benefits for their health expenses. At this time of momentous change in the U.S. health delivery system and expanding awareness and recognition of the civil rights of sexual minorities (Weber, 2010).

This nation was founded on the idea that a group of people, all different, came together to form one nation. This basic idea has not always resonated throughout history though. Instead of embracing the differences amongst the people, the majority in this country have ridiculed and discriminated against those who were different, just because they were. The latest group of different people, the LBGT, is no different. They are fighting the same battle that many others have fought over the years; just the name of their fight is different. The nature is very much the same. All of those who have been labeled as being different from the majority have wanted nothing more than to be able to exercise their basic constitutional rights that were given to them when this country was founded. The fight has been a long, hard one and is one that will not be resolved in a timely manner, but it will be resolved. Eventually the LGBT group will get the equalities that they want, but it won't be until there is another group that is identified as different, and the focus will shift to the new group as the current one will no longer be novel.