commentary
Beyond the Briefs
Supporting gays will affect U.S. Supreme Court
Published Thursday, 16-Apr-2009 in issue 1112
In a reversal of Bush policy, President Obama decided to sign a United Nations declaration calling for the decriminalization of homosexuality, the State Department reported in March.
The United States joins 66 other U.N. member states in condemning human-rights violations based on sexual orientation and gender identity.
The U.N. General Assembly, which consists of 192 nations, had been split on the issue of gay rights, with many Muslim countries refusing to sign the statement because they oppose international attempts to legalize homosexuality.
Homosexuality is illegal in 77 countries, seven of which punish it by death. Even in countries where homosexuality is not punishable by death, governments are complicit in soliciting private parties to kill us. For example, in the last few weeks, Iraq has murdered 10 gay men, and in slum areas in Iraq, such as Sadr City, gay men continue to be slaughtered.
The Bush administration opposed the U.N. document because it thought supporting it might be interpreted as an attempt by the U.S. federal government to override individual states’ rights on issues like same-sex marriage. The United States was the only country in the West not to sign the document. All European Union member states endorsed it, as did Canada, Australia and Japan.
U.S. Secretary of State Hillary Clinton told a recent town hall meeting that the U.S. supports gay rights.
“Human rights is and always will be one of the pillars of our foreign policy,” she said. “In particular, persecution and discrimination against gays and lesbians is something we take very seriously.”
Some see support for the declaration as nothing more than an empty gesture by President Obama. But it’s the first action he’s taken in support of gay rights. For that reason alone, it’s not an insignificant gesture. Further, this action is far more important than simply appointing people who happen to gay or lesbian, as Obama has already done. The U.N. document represents a world consensus on human rights and so will be extremely persuasive in U.S. judicial decisions; U.S. Supreme Court opinions, in particular those advancing gay rights, often cite international laws for support. For example, in Lawrence v. Texas, Justice Anthony Kennedy, in striking down a law criminalizing private gay behavior, cited laws of other Western countries that had decriminalized homosexual conduct.
And it’s fairly clear that the Supreme Court will cite the latest U.N. declaration in decisions supporting same-sex marriage, because many signatories to the declaration also support marriage equality.
It’s becoming clearer to many that a majority of the Supreme Court will soon be able to cite international support for same-sex marriage. And now, with Iowa, joining Massachusetts, Connecticut, Vermont and other states recognizing same-sex marriage or its legal equivalent (civil union), there is ever-growing national momentum in its favor.
The declaration is also important because it puts the U.S. on record as condemning imprisoning gays and lesbians for their private conduct, which means that it should be easier for immigrants to the U.S. from anti-gay countries to seek asylum here.
Each year since 1993, the State Department has reported on conditions in other countries affecting human rights. In particular, these reports call for data on anti-gay actions taken by the government or condoned by authorities.
The pro-gay Council for Global Equality examined this year’s report and found that there is a “growing crisis in human rights abuse directed against LGBT people around the world.” These abuses include arbitrary arrest and detention, police abuse, rape and murder. Countries considered to be friends and allies of the United States have committed many of the most egregious abuses; many such countries, such as Egypt, receive sizeable U.S. development or security assistance.
Having compiled these reports now for 15 years, the United States must move beyond reporting abuses. We need to condition aid and support for these nations on efforts made to stop human-rights abuses.
Robert DeKoven is a professor at California Western School of Law.
E-mail

Send the story “Beyond the Briefs”

Recipient's e-mail: 
Your e-mail: 
Additional note: 
(optional) 
E-mail Story     Print Print Story     Share Bookmark & Share Story
Classifieds Place a Classified Ad Business Directory Real Estate
Contact Advertise About GLT