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Social Workers and Legal Developments in Gay Rights


Lesbian, gay, bisexual, and transgender persons continue to suffer from social stigma, harassment, hate-crimes, and discrimination. The United States Supreme Court issued a landmark decision last term in Lawrence v. Texas, 123 S.Ct. 2472 (2003),[1] that clarified the right of adults to engage in private, consensual sexual activities regardless of sexual orientation and removed the cloud of possible criminal prosecution for such acts. NASW and its Texas Chapter participated in the case as a “friend of the court” by filing an amicus brief in conjunction with the American Psychiatric Association and the American Psychological Association.[2] This article will examine the Supreme Court’s ruling as well as recent and anticipated legal developments.

Social workers have long supported the expansion of civil rights for all people, including those who are lesbian, gay, bisexual, and transgender. NASW’s policy is to encourage social workers to work toward expanding full legal rights for the lesbian, gay, bisexual and transgender population.[3]

NASW Involvement in Supreme Court Decision

Lawrence v. Texas involved two gay men who were arrested for engaging in consensual sexual activities in the privacy of their own home after police were called to the house for other reasons. The defendants were charged under Texas’s criminal sodomy statute. On appeal to the U.S. Supreme Court the Texas statute was declared unconstitutional because it violated the defendants’ due process rights under the Fourteenth Amendment. In a 6-3 opinion, the Justices expressly overturned a 1986 Supreme Court decision in Bowers v. Hardwick, a case that upheld a Georgia criminal sodomy statute under which a gay man was prosecuted for private conduct in his own home.

Key arguments in the NASW brief submitted in Lawrence included:

  • The major mental health professions recognize that homosexuality is a normal form of human sexuality, and not a mental disorder.
  • Suppressing sexual intimacy among same-sex partners would deprive gay men and lesbians of the opportunity to participate in a fundamental aspect of human experience.  
  • Antisodomy statutes like that in Texas reinforce prejudice, discrimination, and violence against gay men and lesbians.

These arguments are supported by NASW policies that encourage nonjudgmental attitudes toward sexual orientation and that increase awareness within the profession of oppression, heterosexism, and internalized homophobia. NASW encourages the development of programs, training, and information that promote proactive efforts to end the physical and psychological violence aimed at lesbian, gay, bisexual, and transgender people.

Same-sex Marriage

Two weeks prior to the Court’s ruling in Lawrence, the Court of Appeal for Ontario, Canada issued an opinion, Halpern v. Attorney General of Canada,[4] extending marriage rights in that province to same-sex couples. As of September 30, 2003, more than 750 marriage licenses were issued to same-sex couples in Toronto, with one-third issued to U.S. couples.[5]

Support for same-sex civil marriage has grown in the United States for the past several years, according to the Human Rights Campaign,[6] with 90 percent of voters favoring hospital visitation rights for same-sex partners, 60 percent favoring some of the legal rights of marriage for same-sex couples, such as health care benefits, and an even split on same-sex marriage.

A case that is being closely watched by the Bush administration, according to news reports, is being appealed to the Supreme Judicial Court of Massachusetts. Goodridge v. Department of Public Health, 14 Mass.L.Rptr. 591, 2002 WL 1299135 (2002), involves seven same-sex couples who have applied for marriage licenses and been denied. A number of the couples have minor children and many are in relationships of several decades’ duration. In the U.S., only Vermont permits civil unions for same-sex couples, and 37 states have expressly indicated that they will not recognize gay marriages performed in other jurisdictions.

Analysis and Conclusions

The stage is set for continued conflict in the U.S. regarding the civil rights of gays and lesbians. Although a number of U.S. same-sex couples may choose to emigrate to Canada, residency there is not required for marriage. Thus, some couples with legalized Canadian marriages may seek recognition of their marriages at home in the U.S.

Unlike Canada, where some marriage laws are embedded in the federal system, in the U.S., marriage laws are primarily the responsibility of state governments. This weighs against the likelihood of passing a constitutional amendment in the United States to restrict same-sex marriage. In addition, the legal trend is toward expanding rights, rather than using the constitution to restrict individual rights.

Reported instances of anti-gay hate crimes are steadily increasing, so advocacy efforts will be continuously needed to press for enforcement of existing laws, to provide assistance to crime victims, and to support initiatives to create equal rights for lesbian, gay, bisexual and transgender persons in all areas. Social workers can continue these efforts with the knowledge that they are working to uphold the NASW Code of Ethics’ proscription against discrimination based on sexual orientation and the agreed values and policies of NASW.

[1] http://news.findlaw.com/cnn/docs/scotus/lwrnctx2603opn.pdf
[2] http://www.lambdalegal.org/binacy-data/LAMBDA_PDF/pdf/179.pdf
[3] http://www.socialworkers.org/resources/abstracts/abstracts/lesbian.asp
[4] www.ontariocourts.on.ca/decisions/2003/june/halpernC39172.htm
[5] www.samesexmarriage.ca/legal/toronto_marriage_stats.htm
[6] http://www.hrc.org/issues/marriage/background/talkpts.asp

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