Koppitegrrrl

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable Rights, that among these are life, liberty, and the pursuit of happiness”. These words of the Declaration of Independence are ingrained in the minds of students in the United States. These words state plainly that every human being has the right to not only live, but to have freedom. Every single person has the individual freedom to define their existence. The U.S. Constitution lays these rights out for both the government and the people of this great nation. The Supreme Court interprets these rights when conflict between the people and their government occurs over their definitions. According to The Declaration of Independence and the Constitution, equality means all persons having access to the same liberties. These liberty include freedom over one’s own body, freedom of expression, and freedom from discrimination under the law due to race, gender, sexual identity.

                The Founding Fathers did not enumerate every right in the Constitution and Bill of Rights. They left the document open to interpretation. This makes the meaning of the document mutable. This gives every generation the opportunity to define what they believe the Constitution means. Many of the Founding Fathers had slaves. They did not publically acknowledge homosexuality. Women of the time were second class citizens. They were not perfect people but they were still able to create a perfect document. Through the U.S. Constitution and its Amendments the Federal Government has made great strides in terms of racial and women’s equality. Despite these strides, sexual and gender equality is not protected by the federal government.

                The Thirteenth, Fourteenth, and Fifteenth Amendments conquered racial inequality.The Fourteenth Amendment finally made equality the law of the land, in theory. In practice, Federal policy on equality is still an ongoing battle. One area where The Supreme Court ruled in favor of equality through The Fourteenth Amendment is education. In 1954, in Brown v the Board of Education, racial segregation in education was determined to be unconstitutional.The Supreme Court determined that separate institutions for learning were not equal. The court argued that education is an important part of modern life that all citizens equally deserve.The court applied this opinion via stare decisis, or precedent, to gender in 1996 in a case involving the Virginia Military Institute. The Virginia Military Institute refused to admit women. A nearby college that was inferior to VMI offered classes to women. The Supreme Court ruled VMI had to accept women based on the Fourteenth Amendment.

                In 1873 the Supreme Court ruled against gender equality in Bradwell v Illinois. Bradwell was told by the State of Illinois that she could not practice law because she was a woman The Opinion of the Court stated, “The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother. This is the law of the creator”. Women finally won the right to vote in 1920 with the ratification of the Nineteenth Amendment.Gender equality finally began to become a reality. It took 51 years from the Nineteenth Amendment that women were given equal opportunity to be executors of wills. By being kept from being an executor, women may be kept from rightful inheritance, including the property they live on. In  the 1971 case of Reed v Reed, The Supreme Court ruled that under the Fourteenth Amendment a law stating women were unsuitable to be executors of wills was unconstitutional.

Gender equality has come a long way. However, it still has a long way to go. Under federal statues, discrimination on the basis of race, gender, religion, and age is illegal. Gender, by the federal definition and practice, does not include transgender. “There is no federal law explicitly prohibiting discrimination against transgender people in employment, housing, public accommodations or any other area of law”.Gender identity-based discrimination is very common in the workplace upon coming out as transgender, transitioning on the job, and discovery of their birth sex. Employers do not face any penalty for this type of bias. Crimes committed against transgender individuals because of the fact that they are transgender are not considered hate crimes.This means they are not protected under the federal hate crimes statutes.

Transgender individuals are often discriminated against by health care professionals and insurance companies. They often face significant hurdles in obtaining appropriate medical coverage, often due to insurance policies’ exclusion of coverage for sex reassignment surgery and related treatment.After gender reassignment surgery the internal organs are left inside the individual. Doctors as well as insurance companies are often unwilling to perform operations on transgender individuals. Sean is a 23 year old FTM, female transitioned to male, who suffered from cervical cancer post operation. Because Sean is now a man his insurance company would not cover the operation. Sean went to fourteen doctors before he found one willing to operate on him.He could have died waiting for someone to help him. Doctors should not be allowed to discriminate in this way.

Transgender inmates are not required by federal policy to be housed according to their gender identity.This is not only emotionally traumatic for the person, but it places them in danger. Rapes are a common problem in prison and a transgender person is big target. They are also denied appropriate medical care in prison, such as hormone therapy. Hormone therapy is necessary for their health and maintains their gender identity. By denying them this treatment they are denying their identity.  Even with the repeal of Don’t Ask Don’t Tell, which will finally allow gays in the military to come out of the closet, transgender individuals will not be allowed to serve in the military. In theory, The Fourteenth Amendment clearly protects the rights of transgender individuals. The Supreme Court has not had a major decision on this issue.

In 1986 The Supreme Court ruled that a Georgia statute criminalizing sodomy was lawful. The Opinion of the Court, issued by Justice Byron white, stated that “the right to engage in homosexual sodomy was not deeply rooted in this nation’s historical tradition”.[17] It is true that homosexuality was not a focus of the founding fathers, but that does not mean they would not consider it to be covered under an induvidual’s rights today. Byron White also argued, “Sodomy was a criminal offense at common law, and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights.”[18] Chief Justice Burger added, “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching”.[19] Under this logic slavery should be allowed today. Justice Stevens’ Dissent in Bowers stated, “The fact that the governing majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice”.[20]  Justice Blackmun’s dissent stated, “We protect those rights not because they contribute, in some direct and material way, to the general public welfare, but because they form so central a part of an individual’s life. The concept of privacy embodies the ‘moral fact that a person belongs to himself, and not to others, nor to society as a whole.”[21] The Declaration of Independence specifically states that the pursuit of happiness is a fundamental right. Being yourself and comfortable with your identity is essential to the pursuit of happiness. No one has the right to define who you are besides you. Justice Blackmun also stated in his dissent, “The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.”[22]    

Persecution and discrimination of homosexuals was an especially rampant problem in the 1940s through 1980s. The problem is not solved by any means. However, in New York city, during the summer of 1969, the gay liberation movement began.[23] The police regularly raided the gay bars in New York City. Homosexuals were treated like criminals. On June 27, 1969, the patrons of The Stonewall Inn had had enough of the totalitarianesque police force . As the police raided the bar, a crowd of four hundred gay and lesbian patrons gathered outside on the street and watched the officers arrest the bartender, the doorman, and a several drag queens for no apparent reason but that they were gay.[24] The crowd grew to almost 2000 people. They were tired of the years of abuse of gays at the hands of the police. Chants of gay power filled the air.The agitated crowd began to throw anything they could find, beer bottles, trash cans, whatever debris was lying around. More police officers arrived and began to grab members in the crowd and beat them. The crowd fought back. By early morning the fight had died down. Many protestors were hurt, some severely, and thirteen were arrested.[25] Four police officers were hospitalized. The following night a larger crowd showed up. The police fought the crowd for two hours. At that point the riot police showed up. At least two rioters were said to be severely beaten by the police and many more sustained injuries.[26] The following Wednesday a little over 1000 protesters returned to the spot to continue the protest and marched on Christopher Street.[27] Gays had had enough.

Since 1969, gays and lesbians have come a long way. Groups like the Human Rights Campaign, Lambda Legal, and The American Civil lIberties Union have fought tirelessly for gay and transgender rights. The movement, now called the LGBTQ (Lesbian, Gay, Bisexual, Transgender, and Questioning) movement, has instituted Gay chambers of commerce to promote gay owned companies, major magazines for gays, and many website communities. Gays have become police officers and lawyers, and politicians. People in positions to make a difference and advance the movement. Many gay and lesbian couples live openly and have families. The gay community built after Stonewall is as strong as ever. Gays may have come a very long way, but still have a long way to go. Five states still have statues making homosexuals criminals.[28]

The Supreme Court made a stride in the direction of homosexual equality when it overturned Bowers v Hardwick. The Writ of certiorari was granted to Lawrence v Texas in 2003. The center of the case was a Texas statute outlawing homosexual sodomy .The court stated, “The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are immoral or unacceptable”.[29] Justice O’Connor stated in her Opinion,

While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas’ sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class. “After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal…the criminalization of homosexual conduct is an invitation to subject homosexual persons to discrimination in both the public and in the private spheres.[30]

The Supreme Court’s Opinion is a huge step forward for gay rights. While there is no federal law protecting homosexuals from discrimination, there is the precedent that it is unlawful.

                One area where sexual equality is lacking is marriage. Not only is same-sex marriage not protected by federal law, it is attacked by it. In 1996 Senator Don Nickels of Oklahoma introduced a bill titled A Bill to Define and Protect the Institution of Marriage, called the Defense of Marriage Act, or DOMA for short. The bill went through the Senate and House at amazing speed and was passed two months later. Senator Mink of Hawaii spoke against it,

“Mr. Chairman, I rise to state my unequivocal opposition to H.R. 3396. It goes far beyond the defense of the institution of marriage. It attacks the U.S. Constitution by allowing States to ignore the `full faith and credit’ clause. First, I would like to point out that marriage is not only a religious ceremony. A marriage is also a ceremony presided over by a judge or a justice of the peace. After the marriage ceremony in a church the minister has the married couple sign a marriage certificate in order to have it registered in the State Bureau of Registrations. A marriage therefore is a State recognized decree. A duly valid marriage in any State is a marriage that is duly recognized in every other State. And despite the minister’s statement during the wedding that this union is `until death do us part,’ marriages are broken by the court, not by a church ceremony. Marriage is an instrument of the State. It may be ordained by the church, but it is a decree of the State, and it is dissolved by the State”.[31]

                Senator Barr from Georgia argued in favor of DOMA,

“Mr. Chairman, as Rome burned, Nero fiddled, and that is exactly what the gentlewoman and others on her side who spoke yesterday and last night would have us do. Mr. Chairman, we ain’t going to be fooled. The very foundations of our society are in danger of being burned. The flames of hedonism, the flames of narcissism, the flames of self-centered morality are licking at the very foundations of our society: the family unit.”[32]   He goes on to say, “We all must stand up and say we support this. Enough is enough. We must maintain a moral foundation, an ethical foundation for our families and ultimately for the United States of America”[33].

It was signed by President Clinton one month after that, September 21, 2006.[34]

It is an extremely short bill that cuts right to the point. It was made simply with nothing added to it so it could easily go through the House and senate. The law has two parts. The first part of the law carves all same-sex marriages out of all federal protections.

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship. [35]

This means that no state has to recognize a same-sex marriage. It goes further to say that no state has to recognize a same-sex marriage from another state, even if it is lawful in that state.

The second part of DOMA defines marriage. By defining marriage as a union of man and woman, it makes all same-sex unions illegitimate. This means no state has to honor a same-sex marriage because by definition it is not a marriage. This law is blatant discrimination against homosexuals. The text of the second part of the law reads,

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage’ means only a legal union between one man and one woman as husband and wife, and the word `spouse’ refers only to a person of the opposite sex who is a husband or a wife.

This definition is unconstitutional. Even in states where same-sex marriage is legal, those couples cannot have access to any of the federal protections and benefits that heterosexual couples receive. Marriage offers 1,138 Federal benefits and responsibilities, not including hundreds more offered by every state.[36] These benefits include tax breaks and inheritance laws. It means homosexuals cannot sponsor their spouses for citizenship. Divorce requires a trial to determine the distribution of property, as well as, decisions on child custody and spousal support This does not hold true for same-sex couples. Spousal and child support for same-sex couples are not required by law. Spouses have hospital visitation rights and the right to make medical decisions in event of illness or disability of their spouse. This does not apply to homosexuals, who are not guaranteed sick leave or emergency leave for families. Mothers and fathers are alloted maternity or paternity leave when they have a child, this does not apply to homosexual males and the non-birth giving homosexual woman.The law provides certain automatic rights to a person’s spouse upon their death, regardless of whether or not a will exists. Homosexuals are not guaranteed custody of their children when their spouses’ die. Gay spouses are not guaranteed rights even if a will does exist. It is commonly contested by the family of the deceased.

The way the U.S. legal system is set up, the Supreme Court cannot rule on an issue until it is brought before the court. The process of a case getting to the Supreme Court is timely. It is only a matter of time before the case of gay marriage makes it  the Supreme Court. At that point, hopefully gay rights will come to fruition and federal discrimination of homosexuals will come to an end.  If you look at stare decisis, the Court should rule in favor of gay marriage. Not only from the precedent of Bowers v Hardwick, but from a 1967 case of inter-racial marriage. The Supreme Court ruled in Loving v Virginia that, “There can be no doubt that restricting the freedom of marriage solely because of racial classification violates the central meaning of the equal protection clause”. There is no reason that should not be applied to same-sex marriage. The Opinion of the Court given by Chief Justice Earl Warren stated,

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.

Given the precedent in Loving v Virginia it is highly likely that federally sanctioned discrimination of homosexuals will come to an end. But for now, gender and sexual discrimination are a serious problem in our nation. Even in the freest nation on earth, there are second class citizens. Hatred and intolerance are still a part of American life. Even though America has taken great strides toward the ideas of the Constitution and Declaration of Independence, she still falls short. Equality is still a dream.