Should Homosexuals Have "Equal Protection" Rights Based on Their Sexual Orientation?
The American Civil Liberties Union (ACLU) stated in a Mar. 11, 2002 article titled "The Rights of Lesbian, Gay, Bisexual and Transgender People" that:
"Despite ... advances into the American mainstream, ... lesbian, gay, bisexual and transgender (LGBT) people continue to face real discrimination in all areas of life. No federal law prevents a person from being fired or refused a job on the basis of sexual orientation....
The struggle for legal equality for LGBT people rests on several fundamental constitutional principles.
Equal protection of the law is guaranteed by the Fifth and Fourteenth Amendments and reinforced by hundreds of local, state and federal civil rights laws.... The ACLU believes the Equal Protection Clause prohibits discrimination based on sexual orientation as well.
The right to privacy, or 'the right to be left alone,' is guaranteed by the Fourth, Fifth, Ninth and Fourteenth Amendments.... Supreme Court decisions underscore the principle that decisions about intimate relationships are personal and should be left up to the individual....
Most Americans do not realize that many LGBT people who face discrimination — in areas from housing and employment to parenting — have no legal recourse since federal law does not prohibit discrimination against LGBT people.... Businesses openly fire LGBT employees, and every year, lesbian and gay Americans are denied jobs and access to housing, hotels and other public accommodations. Many more are forced to hide their lives, deny their families and lie about their loved ones just to get by.
The ACLU believes the best way to redress discrimination is to amend all existing federal, state and local civil rights laws and all existing business and university policies to ban discrimination based on sexual orientation."
Suzanne Goldberg, JD, Clinical Professor of Law at Columbia Law School, stated in an edited version of her 1995 speech posted on PublicEye.org, the web site of Political Research Associates (PRA):
"Don't be fooled by the 'special rights' rhetoric of the Religious Right. There is something legally wrong with initiatives seeking to limit civil rights protections to exclude sexual orientation-based discrimination or create a situation in which gay and lesbian citizens have lesser rights compared with other citizens....
The anti-gay initiatives would require a state or local government not to respond to the complaints of lesbians, gay men, and bisexuals about discrimination against them because of their sexual orientation. Any other group could bring its complaints to the government and try to obtain protection. Because the initiative would bar the government from responding to lesbians, gay men, and bisexuals only, the initiative changes the entire political process and burdens the political participation of lesbians, gay men, and bisexuals. It requires the government to treat gay and lesbian people differently from all other people.
Finally, it is important to remember that these initiatives target identity, not conduct. Even when an initiative focuses on lesbian and gay conduct or behavior, its effect is to prohibit protection against discrimination. When someone is fired for being lesbian or evicted for being gay, the firing or eviction is almost never tied directly to that person's conduct. Rather, we are targeted for discrimination and sometimes violence because of who we are--lesbian, gay, or bisexual--and what others assume we will do on that basis."
Jonathan Rowe, JD, MBA, Assistant Professor of Business, in an Apr. 17, 2004 blog post, "Gay Hotel (Apparently) Breaks 'Sexual Orientation' Discrimination Law," wrote:
"Although there is much uncertainty here, some statistical measures have shown that homosexuals are over-represented in terms of wealth, education, and income. Now, even though anti-gay folks say that this ought to disqualify gays from receiving any kind of anti-discrimination protection, this is not the case. Jews & Asians are also over-represented in similar manners, and receive anti-discrimination protection as racial, religious, and ethnic groups. But there is no push for affirmative action for Jews or Asians because it is not needed. Likewise will be the case for gays when more 'sexual orientation' anti-discrimination codes are passed."
Human Rights Education Associates (HREA) wrote in a 2003 Study Guide titled "Sexual Orientation and Human Rights":
"Sexual orientation is a relatively recent notion in human rights law and practice and one of the controversial ones in politics.... For many public officials and opinion-makers the expression of homophobic prejudice remains both legitimate and respectable - in a manner that would be unacceptable for any other minority.
The main principles guiding the rights approach on sexual orientation relate to equality and non-discrimination....
Lesbians, gays and bisexuals do not claim any 'special' or 'additional rights' but the observance of the same rights as those of heterosexual persons. Lesbian, gay, bi-sexual and transgendered (LGBT) persons are denied - either by law or practices - basic civil, political, social and economic rights."
Mathew D. Staver, JD, Founder and Chairman of Liberty Counsel, in his Oct. 2002 article "Homosexual Behavior Should Not Be Accorded Special Protection," published by the National Law Journal Online and posted on Liberty Counsel's web site, wrote:
"The federal Civil Rights Act of 1964 laid the foundation for future civil rights laws.... Homosexual activists are attempting to hijack the civil rights train by claiming that homosexual behavior deserves the same special protection granted to racial and gender minorities....
The unifying characteristics of the protected classes within the Civil Rights Act of 1964 include (1) a history of longstanding, widespread discrimination, (2) economic disadvantage, and (3) immutable characteristics.... 'Sexual orientation' does not meet any of the three objective criteria shared by the historically protected civil irghts categories. Thus, 'sexual orientation' should not be elevated to the category of a protected civil right.....
History and reason illustrate the insanity of according special civil rights protection to a person's sexual preference. Once homosexual, bisexual and transgender behavior is elevated to a protected status, there is nothing to stop bigamy, pedophilia, or any other deviate sexual practice from receiving the same protection. It should be remembered that when elevating any activity to special status, opposing activities and viewpoints lose protection. If 'sexual orientation' laws become commonplace, then any person who speaks against deviant sexual practices will be vilified, their rights will be thwarted, and their freedom of religion and of conscious will be crushed."
Leadership University published a July 13, 2002 article by Tony Marco titled "No Defensible Rationale for Special Advantages for Gays, Including Need for 'Equal Protection' for Gayness," which stated:
"(1) Aside from gay militants' self-serving allegations of 'oppression,' all available evidence indicates that, far from being disadvantaged economically, educationally or culturally, self-identified gays as an entire class are extraordinarily advantaged relative to the general population and astronomically advantaged relative to the protected classes whose status gay militants seek to share;
(2) 'sexual orientation,' defined as gay militants insist, not to include sexual behavior, and sexual ideation being highly mutable, transitory and evanescent, cannot possibly exhibit any obvious characteristics by which any class status may be defined or limited;
(3) gays as a class, while representing perhaps 2% of America's population, represent a political force superior to 99.9% of all American political action committees. Enough money makes any group a 'majority' -- and certainly insulates any group from becoming 'second-class citizens.' Therefore, in no way, can a case be made that gays as an entire class should be afforded protections equal to those enjoyed by traditionally protected or suspect classes. Thus, denying gay militants that class status and those protections is eminently rational, given the criteria established to rule inclusion in those classes...."
Charles Tassell, Director of Governmental Affairs for the Greater Cincinnati Northern Kentucky Apartment Association, responded to the question "Should Article 12 of the Charter of the City of Cincinnati, which prohibits granting gays and lesbians protection from discrimination, be repealed?" in the Aug. 16, 2001 issue of CityBeat:
"The civil rights language that would be modified to include sexual orientation has a long and rich history of development, one that has forced Americans to wrestle with deep institutional social bias. While the wrestling was neither easy nor pleasant, it was done because of the public nature of the characteristics that were involved, so individuals would be free from institutionalized prejudice....
Arguments for the inclusion of sexual orientation typically overlook the very private nature of the thoughts and actions surrounding homosexual activity. In fact, to demand a form of recognition and governmental protection seems to beg the very question of privacy that the majority of the gay community wants. The deeper issue seems to be one of social acceptance of sexual behavior that is considered deviant.... However, the Constitutional tolerance (pursuit of happiness) of the homosexual agenda should also not be viewed as justification to make the leap from protecting publicly immutable issues like skin color or gender to the protection of one's sexual proclivities."