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Social Workers and Legal Developments
in Gay Rights
Introduction
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.
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