Political Science 111, Section 3

Erin Robin
Suzanne Aisenberg
Lilian Hernandez
Insung Han
 

I. Court Cases

    Throughout history, homosexualityhas been looked down upon and legislated against.  The

law has prohibited any type of behavior outsideof the heterosexual relationship.  This deviant

behavior has included not only homosexuality butalso fornication, adultery, oral, and anal sex.

Originally, religious laws prohibited these typesof behavior; then civil laws followed suit.

The reasoning for these prohibitions is that marriagebetween a man and a woman is the

cornerstone of society.  "The idea of a man,a woman, and children is what civilization is based

on."  Therefore, any acts outside of a heterosexualmarriage are viewed by fundamentalists as an

erosion of society as stated by the Church ofJesus Christ of Latter-day Saints.

    In our group there is a consensusthat homosexuals should have complete equality with

everyone else in this country to not only marryand engage in sexual activities, but also to raise

children.  This is the result of the factthat in the recent past homosexuals, as well as women,

have challenged theserestrictions in the courts as well as in the media.  Their actionshave had

a tremendous effect not only on our group butalso on a vast amount of people in this country.

Just twenty yearsago there would have been a much greater opposition to equality for

homosexuals. Butas a result of their involvement, public awareness has been raised.

This paper aims to deal with specific constitutionalarguments, a number of court cases, the

opinions of a few Hunter College students we talkedto, and the role that homosexuals play in

the media.

    Challenges have beenmade on restrictions of same sex marriages as wellas restrictions on

adoption by a homosexual couple.Constitutional arguments such as the violation of the Equal

Protection Clause of the 14th amendment and the violation of the Rightof Privacy in the 9th

amendment have also been used. They have had varying degrees of successin the courts, but the

publicity surrounding these cases have benefited them by giving themmore exposure in the

media, which has resulted in a more favorable view toward them in society.

      The 9th and 14th amendments are two toolsused by homosexuals in courts to

advance their civil liberties and rights.  The 9th amendment providesfor the "enumeration of the

Constitution, of certain rights, shall not be construed to deny or disparageothers retained by the

people (Sexual Orientation and human Rights).  "  Thisbasically means that if you are an

individual you have the right to personal autonomy and therefore theright to privacy.  "Certain

rights" in the 9th amendment has been argued to include the right ofprivacy.  The 14th

amendment includes the Equal Protection clause which reads in part asfollows:"...[N] or shall

any state...deny to any people in its jurisdiction the equal protectionof the laws."  This includes

the rights of life, liberty, or property.  Homosexuals have arguedthese two provisions in

numerous court cases.  USConstitution  They are an invitation to arguments about what isright

and just for a group of people that a minority has taken a positionto fight for equality.  This is a

movement similar to the Civil Rights Movement, which sought to peacefullysettle the

discrimination against racial minorities.   Decided by theSupreme Court of the United States in

1986, Bowers v Hardwick,(The Challenge of Democracy) one of the most famous court cases

dealing with homosexual rights, is a fine example of this movement. In a 5-4 majority opinion,

the court declined to extend the right of privacy to cover private homosexualacts between

consenting adults.  This case involved the arrest of Hardwick whowas found in his bedroom by

the Atlanta police engaging in sex with another man; Hardwick was chargedwith the crime of

sodomy.  He argued that his arrest had violated both his rightsto engage in private sexual

relations and the right to be free from government intrusion in oneshome.  It appeared that the

court which had extended the right of privacy in cases involving contraceptionand abortion

such as in Roe v Wade (Law of Sex and Discrimination) shouldhave extended that right to

private homosexual acts.  However, the majority found that onlyheterosexual relations were

protected by privacy.

    In our society there are many different theorieswhen describing our view on what a family

unit should consist of.  Today, there have been many questionson whether or not a homosexual

relationship constitutes a "normal" family.  The question of whetherhomosexuals should be able

to marry and adopt go far beyond one's own moral beliefs.

    There have been studies which conclude that "thereis no factual basis for claims that the

adoptionof children by lesbian and gay parents is harmful."  There isnot a great deal of

information that our society is aware of that can make one concludethat homosexual

relationships may cause harm to a child.  "Co- parent adoptionshave been emerging from the

nation's gay community (Nonline.com web site)."  Co- parent,or same sex adoption, is when

one parent is the child's legal parent.  The legal parent may consentto the adoption by the co-

parent without losing any of his/her parental rights.  Issues offather custody in divorce cases

have received attention in recent years as more and more men wish totake part in their

children's lives.  Although research has shown that the parentssexuality has little impact on the

development of the child's sexuality, courts are reluctant to placechildren in their care.  Many

courts have recognized that sexual orientation cannot provide the basisfor denying custody of

children.  "The courts have also ruled that the parent's sexualorientation is not contrary to a

child's best interest unless there is proven casual connection betweenharm to the child and the

parent's behavior, condition or status (Adoptionquest.Carole S. Collum/msn.Online)."
 
    In Schuster v Schuster (The Law of Sex...), the Supreme Court of Washington State was

forced with the question of whether two lesbian mothers living togethershould lose custody of

their children based on the fact that they had violated divorce judgmentsprohibiting them from

cohabiting. The majority opinion decided that although the lesbian mothersshould not lose

custody of their children, they were required to live apart. In a dissentingopinion, one judge

summarized the fundamentalist opposition to homosexual equality thathomosexuals in this

country are so strongly fighting against.  Particularly in theraising of children, Justice Rosellini

said in part that "if homosexual behavior is legalized, an adolescentmay question whether he or

she should 'choose' heterosexuality."  He was worried that childrenwould be influenced by

homosexuals into being homosexual themselves.  A very prominentcase having to do with

homosexual adoption was the A.C.L.U.v the state of New Jersey; A male homosexual couple

was represented by the A.C.L.U. in their fight to adopt a baby boy. The men were denied an

easy adoption process as a heterosexual couple would have had, and feltthat they were

discriminated against because of they're sexual orientation. In thiscase, the couple's civil

rights were being denied, and there was no exercise of equal protection. Lenora M Lapidus, the

legal director of the New Jersey A.C.L.U. said "The states refusal togrant adoption to gay and

lesbian couples is discriminatory, illegal and above all, harmful tochildren.  The state is

essentially trying to make John and Michael (Gallucioi and Holden) jumpthrough a two-step

process when all other married heterosexual couples can adopt. That violates the very meaning

of equal protection."

    In Braschi v Stahl Associates Co. (Law of Sex...),the court was faced with a dispute over

occupancy rights to a rent controlled apartment.  In this caseBraschi had been living in a rent

controlled apartment leased by his homosexual lover who had died. The issue was whether

Braschi was entitled to seek protection from eviction under New YorkCity rent and eviction

regulations.  The landlord argued that Braschi was not protectedbecause of the absence of a

"legally recognized" relationship with his lover.  The court foundthat statutes are ordinarily

interpreted to avoid objectionable consequences or to prevent hardshipsor injustices.

The court concluded that the rent control regulations should not berigidly restricted to those

people who have formalized their relationship by obtaining a marriagecertificate or an

adoption order.  Two years later, however, in Alison D. v VirginiaM. (Law of Sex...), the same

New York court of appeals narrowly interpreted the New York domesticrelations law to

prohibit a lesbian from visiting the child that she had helped to raisewith the biological mother.

 The court said that the petitioner, Alison D., had no right underthe Domestic Relations Law to

receive visitation.  In their words she was not a parent. Justice Kaye provided a dissenting

opinion in which she stated that the majority was "imposing an old fashionedand unnecessarily

narrow view of families and parenting."  At that time, Kaye wasjust a judge of the Court of

Appeals; she is now the chief judge of the New York Court of Appeals.
 
    This says a lot about the changing attitudes ofindividuals throughout the system regarding

homosexual issues.  More people are adapting to the reality thathomosexuals need to be

regarded as individuals who can exercise their freedoms exactly theway

heterosexual people can;  these freedoms include the ability tomarry which is legal in Hawaii,

and adopt, which is only illegal in the states of Florida and New Hampshire.
 
     In the case Baher v Lewin (Law of Sex...),three same sex couples applied for and were

denied marriage licenses by the Hawaii department of health.  TheHawaii supreme court ruled

that the lower court erred in ruling against the couple's and issueda landmark ruling.  Although

the court refused to extend the right to privacy to same sex marriage,it did apply the standards

of the Equal protection Act.  The court cited Frontiero v Richardson(Law of Sex...), a Supreme

Court case for the proposition that same sex classification would besubjected to strict judicial

scrutiny, and that the state would have to prove a "compelling stateinterest in discriminating

against same sex couples seeking marriage licenses if it wished to continuethis discriminatory

practice."  This means that the Hawaiian court did not see whysame sex couples could not be

united in the eyes of the state, which eventually led to the legalizationof same sex marriage.
 
     According to the majorityof Hunter College students we spoke to, same sex marriages

should be legalized.  But, as in the indecisionof the courts, the students expressed somewhat

contradictory opinions as to the extent of thefreedoms that homosexuals should be granted.  A

computer science major said that it is ok forsame sex couples to seek marriages "as long as they

don't do it in the back of my house."  Anotherstudent expressed ambivalence when she said that

even though she indicates support for the propositionof equality for homosexuals, she thinks that

a child raised in a same sex marriage will probably"not grow up normal."  This is something

that Justice Rosellini in Schuster would undoubtedlyagree with.  Although agreeing that

adoption by homosexuals should be allowed, a minorityof the people felt that the children

would grow up dysfunctional.  An exampleof this is a statement made by a twenty year old

student, "since a child is exposed to his parentsall the time, they will probably not grow up

normal.  Not only that, the child will alsohave negative responses from outside of the family."

 One issue in which the students surveyedwere unanimously in agreement with is that

homosexual families are not destroying the sacredperception of a family.

    The media plays a big rolein the perception that the public has about homosexual relations,

and recently there have been many television showsand movies that promote healthy,

homosexual relationships as well as families. Ellen Degeneresof ABC's Ellen portrays a

lesbian who is desperately seeking the approvalof her lover who is a single mother.

Ironically, Ellen is owned by Disney,and there was a big scandal recently involving

homosexual Disney employeesclaiming that they were being discriminated against.  The show's

portrayal of the lesbianfamily unit would have been unheard of a few years ago, but is now

more widely acceptable. Other examples of homosexuals being portrayed in a positivelight in

the media would be the charactersportrayed in the movie The Birdcage, which is a re- make of

La Cage Au Faux.  The mainpoint to the movie is that a homosexual couple raised a

well-adjusted male who chose to marrya female.  This backs up the theories that just because

parents are homosexual, the sexualityof the child does not have to be influenced.  Even Jason

Alexander, the lovable Seinfeldcharacter, portrayed a compassionate homosexual in Love,

Valor, and Compassion.

     Recently, homosexualityhas become a more acceptable topic to discuss in society due to the

influence of the media and court decisions. As a result, homosexuals are no longer

apprehensive to demand their rightful place insociety, along with their civil rights and right to

equal protection. Withthe help of public figures and the open- mindedness of the courts and the

general public, thequestion of whether homosexuals are entitled to equalrights will be

relegated to history.

Bibliography

BOOKS

The Challenge of Democracy, Janda, Berry,Goldman.  Fifth edition.  Houghton Mifflin Company, 1997

The Law of Sex and Discrimination, J. RalphLindgren and Nadine Taub.  Second edition.  West Publishing,1998.

Sexual Orientation and Human Rights, RobertWintemute.  Oxford Press, 1995.

WORLD WIDE WEB

http://www.aclu.org/news/n061997a.html

http://www.nonline.com/procon/html/gayadoptpro.html