Gay Rights

For much of American history, indeed, for much of world history, homosexuality has been a taboo subject. Often, it has been considered a crime in and of itself. Yet today, millions of gay and lesbian Americans are not only open about their sexuality, they are campaigning for new laws which they say would grant them the same rights accorded to heterosexuals, including the right to marry. Same-sex marriage, now legal in Massachusetts, Connecticut, and six nations around the world, places gay and lesbian relationships on a legal par with traditional families for the first time in Western history.

What’s more, there’s been a notable shift in the public’s attitudes toward homosexuality over the last two decades. Not all that long ago, for example, it would have been unimaginable to have an openly gay bishop, as the Episcopalian church now does. About half of Americans now say in surveys that homosexuality should be considered an acceptable alternative lifestyle, compared to only one in three people 20 years ago.

At the same time, though, surveys indicate Americans have mixed feelings about how far the government should go in codifying rights for gays and lesbians. Many Americans still view homosexuality as objectionable -- even a sin -- and many see gay rights as an assault on the traditional family and an effort to win government approval for sexual behavior that they view as deviant.
Gay rights remains an emotionally charged issue, and it’s clear the issue will continue to have ramifications not just for public policy but for American society as well.

AIDS and advocacy

Studies suggest that anywhere from 2 percent to 10 percent of Americans are gay or lesbian. Figures are inexact because, while the Census now reports the number of same-sex households they don’t perform surveys on sexuality. Even among researchers there’s disagreement on such questions as whether a single same-sex encounter is sufficient to categorize someone as homosexual. Many people also lie or refuse to answer survey questions about their sexual activity.

For decades, gays and lesbians kept low profiles, creating a community largely hidden from public view. In 1969, however, New York City police raided a popular gay bar, the Stonewall Inn, for allegedly selling liquor without a license. The raid touched off two days of rioting by gays and galvanized what had until then been a loosely formed gay awareness movement. The 1978 shooting death of San Francisco official Harvey Milk, the first openly gay man elected to office in any major city, and the relatively light five-year sentence for his killer added impetus to the movement. But it was the discovery of AIDS that truly roused gays and lesbians into open public advocacy.

AIDS first emerged in 1981, when a small group of gay men in San Francisco began getting sick and dying from a new, devastating ailment. Researchers eventually identified the cause as Human Immunodeficiency Virus, or HIV, a virus that destroys the body’s immune system and is spread through the exchange of bodily fluid. Gay men were particularly at risk because of the practice of anal intercourse. The federal government was slow to respond, and critics blamed the fact that the epidemic at that time was largely limited to gay men. In a 1985 survey, more than half of Americans said they believed the government would spend more money on AIDS research if it didn’t primarily affect gay men.

Gay activist groups like ActUp and Human Rights Campaign lobbied for public attention and government action, arguing, “silence is death.” They said the shame of homosexuality prevented some gay men from either being tested for AIDS or seeking medical treatment for the disease. Some Americans, however, argued that gays were endangering themselves and others by engaging in unhealthy practices. But it became increasingly apparent that AIDS was not limited to gay men and that it could be spread through heterosexual sex and by drug users sharing needles. While there is still no cure for AIDS, researchers have made significant progress in producing treatments that help slow the progression of the disease. The public today considers AIDS second only to cancer in terms of priorities for medical research spending.

Civil rights or special rights

Gay rights activists say it’s a matter of equality; they suggest that homosexuals should have the same rights and protections as heterosexuals, including:

• Protection against discrimination in employment, housing and immigration.
• An expansion of hate crime laws to include sexual orientation.
• Domestic partner benefits similar to those granted to married couples.
• The right to marry or have their relationships recognized in “civil unions.”
• The ability to serve in the military without hiding their sexuality.

Others, though, say special rights shouldn’t be granted on the basis of behavior -- particularly one that many Americans find offensive. And some say that current laws are adequate to protect all Americans, regardless of their sexual orientation.

For many Americans, the issue hinges on the question of whether homosexuality is a choice or an innate characteristic with which people are born.

Advocates of gay rights say sexual orientation, like race or disability, can’t be changed, and therefore homosexuals should be protected like any other minority group. Most opponents argue that homosexuality is a lifestyle choice that shouldn’t be rewarded. Many objections to gay rights have roots in religion; most major religions oppose homosexuality as a violation of the law of God and point to human anatomy and reproduction as proof that same-sex intercourse is unnatural. But even within denominations, there are many who call for tolerance.

Many opponents of gay rights also worry that children who interact with openly gay adults -- teachers or Boy Scout leaders, for example -- will view those adults as role models and make that same sexual choice, thus undermining the course of society. For schools and parents, this presents myriad problems, not least of which is how homosexuality is explained and taught to children, if at all.

In a landmark 2003 decision striking down anti-sodomy laws, the U.S. Supreme Court ruled that gays and lesbians have a right to sexual privacy and are "entitled to respect for their private lives." The decision could undercut the basis for many laws that limit the rights of gays in adoption, child custody and workplace discrimination, but that will only become clear as the decision is applied in new lawsuits around the country.

Partner and benefits

The issue of marriage and civil unions is particularly volatile. European nations have led the way on this issue. In 1989, Denmark became the first nation to grant legal rights to gay couples, calling such unions, which grant many of the same legal rights as marriage, "domestic partnerships." More than two dozen countries have followed suit. Six countries -- Belgium, Canada, the Netherlands, Norway, South Africa and Spain -- allow same-sex couples to marry.

Many Americans, including prominent religious and political leaders, oppose granting legal recognition to same-sex couples, saying it would mark a fundamental shift in the definition of marriage. They say marriage between and man and a woman sanctifies the creation of new life and establishes the cohesive family unit necessary for any stable society. Supporters say marriage is a fundamental right under the Constitution and that denying its benefits to homosexuals is discriminatory.

In the U.S., the pattern has been for state courts to make rulings based on their state constitutions; different states have tried different responses. Hawaii was the first to grant gay and lesbian couples many but not all of the legal rights of marriage, providing benefits in “reciprocal beneficiary” relationships. California, the District of Columbia, Maine, Oregon and Washington have similar laws for domestic partnerships. Vermont, after a bitter legislative fight, authorized civil unions that provide all the state benefits of marriage, and New Hampshire and New Jersey have followed suit. In Massachusetts, the state's high court ruled that nothing short of full same-sex marriage would be acceptable, and the first ceremonies were performed in May 2004. In October 2008, the Connecticut Supreme Court struck down that state’s previous law providing for civil unions and ruled that same-sex couples have the constitutional right to marry. The California Supreme Court ruled in June 2008 that same-sex marriage should be legal, but just five months later, voters reversed that decision, supporting a ballot measure to ban same-sex marriage.

To date, New York and Rhode Island are the only states to legally recognize civil unions and same-sex marriages performedelsewhere. Under the U.S. Constitution, states are required to offer “full faith and credit” to legal actions in other states, including marriages,but some legal experts argue there is an exception if states believe an out-of-state decision violates their own public policy. For example, if some state or foreign country allowed bigamy or underage marriages, other states could refuse to recognize it. After a Hawaii court struck down a same-sex marriage ban in 1996, Congress passed the Defense of Marriage Act specifically allowing states to refuse to recognize same-sex marriage. So far, 44 states have such laws or have passed state constitutional amendments to bar same-sex marriage.

Of course, hand-in-hand with the issue of marriage comes the issue of children. Gay couples andindividuals hoping to adopt can face legal and societal hurdles from those who say homosexuality presents a clear danger to a child’s development and a healthy sexual identity. The vast majority of states no longer routinely deny custody or visitation based on sexual orientation, but two states – Florida and Mississippi – explicitly bar same-sex couples from adopting. Utah, Arkansas and Michigan also do so implicitly, by prohibiting any unmarried couple from adopting.

The public's viewpoint

Even though public acceptance of homosexuality has increased dramatically in the past 20 years, there is still tension between wanting to be fair to people and unease about same-sex relationships.

Surveys show the extent to which Americans are conflicted. Most say the government should treat homosexuals and heterosexuals equally. Yet most Americans say the government should not get involved in the issue of homosexuality, and more than half oppose gay marriage. The vast majority of Americans say gays should have equal rights in terms of job opportunities, yet support declines when elementary school teachers and clergy are mentioned.

More than half say gay partners should receive domestic partner benefits like inheritance rights, health insurance and Social Security, yet the public generally tends to favor extending those benefits to all Americans. Support for gay rights measures can also vary depending on survey wording.

Americans also have a tradition of wanting to be inclusive. For many, it’s a matter of live and let live. But despite the change in attitudes, Americans clearly struggle with how much they want to incorporate into public policy.

Choicework

For additional perspective on how society could address this issue, visit our Discussion Guide which sets out three alternative approaches.

The points of view are drawn both from what the experts say about an issue and from what the public thinks about it, based on surveys and focus groups. We call this section "Choicework." Each point of view comes with the arguments for and against, along with some potential costs and tradeoffs.

• American citizens should be able to go about their lives — getting a job, finding a place to live, forming long-lasting relationships and raising children — without fear of discrimination or harassment simply because they are different from the majority of society. The purpose of government is to protect and extend equal rights to all our citizens.
• These are questions where there is wide diversity in opinion around the country, and communities should be free to find solutions that work for them. On this issue, government should follow, not lead.
• There is a big difference between tolerating private behavior between consenting adults and endorsing such behavior by granting those adults special benefits. The family has evolved over thousands of years as the linchpin of society. Government needs to support and protect traditional values and institutions that form the pillars of a stable, civil society.