Homosexuality in Legal Perspective (Part I): Society and the Constitution
During the month of November, the Helwys Society Forum has emphasized the topic of homosexuality. This is an important topic, especially in our day and age. We have examined it in Biblical, historical, and pastoral perspectives. In this article, we’re considering it in a legal one.
A legal vantage point on this topic is important for Christians for this reason: by having an accurate account of the legal environment in America, we can better perform our evangelistic task, and we can better pursue our God-given callings as citizens within our national context. This certainly seems to be the example of Biblical figures such as Joseph, Moses, Daniel, Esther, and Paul, who fulfilled their callings in part by having an accurate understanding of their legal context.
In order to position ourselves in a similar way for Biblical faithfulness we will consider: (1) the present state of affairs and (2) the constitutional arguments presented in this article; and (3) a proposed Christian approach in next week’s article.
The (Past and) Present State of Affairs
Especially when compared with the teaching of Scripture and orthodox Christianity on the topic of homosexuality, as well as America’s historical position on it, many wonder if we’re living in a modern-day Sodom and Gomorrah. Whatever our personal feelings on the topic, or our attempts to cocoon ourselves from the present state of affairs, we find a strong push toward LGBT (lesbian, gay, bisexual, and transgender) rights upon our doorstep. As Christians, how do we respond and proceed? Before we can answer this question, we must first understand the movement to which we’re responding—in other words, how did we get here? From there, we can discuss a way forward.
a. The Past
For most of its history, American government has penalized homosexual behavior. However, with the reckless abandon displayed in the aftermath of World War I, which came to be known as the Roaring Twenties, as memorably epitomized in F. Scott Fitzgerald’s The Great Gatsby, LGBT rights made a small step forward. In 1924, Henry Gerber founded the first recognized, gay rights organization: the Society for Human Rights (Chicago). Gerber had followed the example of the German Magnus Hirschfeld, an advocate for sexuality rights, feminism, and abortion. Although the Society for Human Rights’ was short lived, it served as an important symbol for what was to come.
In the 1950s, LGBT rights began to gain some momentum. In 1950, Harry Hay founded the Mattachine Society (Los Angeles), which worked to protect gay rights. By May 1953, it had over 2,000 members. (Ironically, this organization would be seen as far too traditional by the LGBT activists of the late 1960s, who were much more confrontational.) In 1955, several women formed the first lesbian organization, the Daughters of Bilitis (San Francisco). Local chapters of these organizations began to litter the American landscape in cities like Chicago, New York City, and Washington D.C..
By the 1960s, the LGBT movement was in full swing. In 1962, Illinois became the first state to decriminalize consensual sodomy. Prior to this, all fifty states had laws against it. Then on Independence Day 1965, the East Coast Homophile Organization began picketing Independence Hall in Philadelphia. These protests were among the earliest LGBT rights demonstrations and led to countless others. Called the Annual Reminder, they would continue to do this each Independence Day through 1969. It was not without significance that they chose Independence Hall, as this was the same place where the Declaration of Independence had been adopted (1776), the framers had held their Second Continental Congress (1787), and the United States Constitution had been ratified (1788).
On April 21, 1966, Mattachine Society members staged a “sip-in” at a Greenwich Village bar in New York City, which prohibited serving gays. Then in 1969, the infamous, three-day Stonewall Riots occurred at Stonewall Inn, also in Greenwich Village. These are just a few, but important examples from the 1960s in LGBT history, which would have such momentous effects.
b. The Present
Fast-forward to the present day, and we can see what the events of the 1960s have produced. In 2003, a divided, 5-4 Supreme Court decided in Lawrence v. Texas that statutory bans against sexual conduct between members of the same sex are unconstitutional. Justice Kennedy famously began his opinion by saying, “Liberty protects the person from unwarranted government intrusions into a dwelling or other private dwellings. In our tradition the State is not omnipresent in the home. . . . Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” This case’s holding has significantly set the tone of the LGBT rights discussion for the next decade as public awareness has grown. We see this especially illustrated through developments in discrimination and marriage law, for example.
In 2011 and 2012 the Equal Employment Opportunity Commission held that Title VII of the 1964 Civil Rights Act, which outlaws discrimination on the basis of race, color, religion, sex, or national origin also applies to lesbian, gay, bisexual, and transgender people under the “sex” component.[1] Today, twenty-one states have outlawed discrimination based on sexual orientation, and eighteen on identity discrimination. In addition, the Employment Non-discrimination Employment Act is a proposed piece of federal legislation that would prohibit workplace discrimination on the basis of sexual orientation or gender identity.[2]
With regards to same-sex marriage, Massachusetts became the first state to recognize same-sex marriage on May 17, 2004. Fast-forward to June 2013, just nine years later, and another divided, 5-4 Supreme Court, United States v. Windsor, held that the Defense of Marriage Act (DOMA) was unconstitutional. DOMA had been passed in 1996 to define marriage as the legal union between one man and one woman. As 2014 draws to a close, thirty-five states permit same sex marriage. Of the fifteen remaining states with bans on same-sex marriage, six have been overturned but are currently in the appeals process.[3] Assuming that these bans are also declared unconstitutional, forty-one out of fifty states will legally permit same-sex marriage—all in the span of ten short years.
Much more could be said about the present state of affairs, but the examples thus given illustrate the legal landscape of LGBT rights. We proceed now to the constitutional arguments that are presented by LGBT proponents and opponents.
The Constitutional Arguments Presented
Concerning the public disposition toward LGBT rights, Americans take one of three positions: (1) support, (2) apathy, or (3) opposition. In this section, we will consider the legal bases upon which those who support and those who oppose LGBT rights stake their claims.
a. Due Process, Equal Protection, & Privacy
LGBT activism, case law, and legislation have most commonly based constitutional claims on the doctrines of due process (substantive and procedural), equal protection, and privacy. Due process and equal protection arguments are rooted primarily in the Fourteenth Amendment, which reads that no state shall either “deprive any person of life, liberty, or property, without due process of law,” or “deny to any person within its jurisdiction the equal protection of the laws.” This means that the law will be applied to all American citizens, including homosexuals, in a just, fair, consistent, and reasonable manner. By discriminating against homosexuals, supporters argue, we deny these constitutional rights.
Privacy means that all citizens have a right to privacy against unreasonable governmental intrusion. This right has no explicit basis in the Constitution, but is implied by American jurisprudence from the First, Third, Fourth, Ninth, and Fourteenth Amendments. Accordingly, they claim, certain laws unconstitutionally burden homosexuals’ privacy rights.
b. Religious Liberty & the Full Faith & Credit Clause
On the other hand, LGBT opposition has most frequently cited the doctrine of religious liberty for constitutional support. Legally, this right finds its basis in the First Amendment, which reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Thus, religious liberty means that American citizens can freely practice their religion without government coercion or interference. Religious liberty proponents argue that the government burdens religious liberty rights whenever it penalizes certain LGBT opponents’ actions and/or inactions with regards to homosexuals. For example, in Article 4, § 1, the Constitution reads, “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” Religious liberty proponents question how this will apply to same-sex marriages. Let’s consider a hypothetical.
State A is composed by a majority of same-sex marriage opponents; as a result, it defines marriage as being between one man and one woman. State B is composed by a majority of same-sex marriage proponents; thus it legally permits members of the same sex to marry. In consideration of the Full Faith and Credit Clause, if a same-sex couple from State B moves to State A, will State A be required to recognize their marriage? At present, this clause’s application in same-sex marriage cases is unresolved. However, in 2013, a same-sex, married couple from Maryland was successful in requiring Ohio, which did not recognize same-sex marriages, to recognize their marriage.[4]
Where two parties—one LGBT proponents and one religious liberty proponents—both stake their claims on the Constitution, and where these two claims come into opposition, what is the right way forward? And how do we as Christians make sense of our world as regards this topic? These are the questions before us, which we’ll answer in next week’s post as we consider a proposed Christian approach.
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[1] See “Civil Rights Act (1964), Our Documents, accessed November 17, 2014, http://www.ourdocuments.gov/doc.php?flash=true&doc=97&page=transcript. This legislation does contain a religious exemption in section 702, which provides, “This title shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, or society of its religious activities or to an educational institution with respect to the employment of individuals to perform work connected with the educational activities of such institution.”
[2] The current bill reads “Prohibits covered entities (employers, employment agencies, labor organizations, or joint labor-management committees) from engaging in employment discrimination on the basis of an individual’s actual or perceived sexual orientation or gender identity” (“S.815 – Employment Non-Discrimination Act of 2013,” Congress, accessed November 17, 2014, https://www.congress.gov/bill/113th-congress/senate-bill/815). The current bill includes a “religious employers” exemption in section 6.
[3] The thirty-five states which permit same-sex marriage include Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. The 15 states which ban same-sex marriage include Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Dakota, Ohio, South Dakota, Tennessee, and Texas. Of these fifteen, the six states that are pending include Arkansas, Florida, Kentucky, Michigan, Missouri, and Texas. For further information, see http://gaymarriage.procon.org/view.resource.php?resourceID=004857.
[4] See Jennifer Lai, “Ohio Gay Couple Wins Right to Be Buried Together,” Slate, July 24, 2013, accessed November 18, 2014, http://www.slate.com/blogs/the_slatest/2013/07/24/ohio_gay_couple_james_obergefell_and_john_arthur_win_right_to_be_buried.html.
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