Disparities in the legal treatment of lesbians and gay men in the United States and their treatment in the rest of the world are becoming more pronounced.
As the U.S. Supreme Court considers an important gay rights case, expected to be decided this month, it should realize that much of the globe sees the issue as a matter of basic human rights.
Last week the Ontario Court of Appeal in Canada ordered the provincial government to grant marriage licenses to two same-sex couples, ruling that restricting marriage to heterosexual couples could not be squared with the fundamental right to equality in Canada's constitution. The Canadian court's decision is hardly an aberration.
In the past decade, national and local lawmakers in dozens of countries have enacted laws to bar discrimination on the basis of sexual orientation in housing, employment, public accommodation and health benefits. Many of these countries are also beginning to recognize rights for lesbian and gay families.
Lesbian and gay couples now enjoy full marriage rights in the Netherlands and Belgium and may enter into registered partnerships in seven other European nations. In November 2000, the European Union adopted a new directive that mandates all member nations to provide equal treatment to lesbians and gay men in employment. At the time, this ruling covered 380 million people. With the union's expansion to 25 countries, it will soon cover millions more.
These legal protections are spreading to parts of the developing world, such as Ecuador, Brazil and Namibia. South Africa's highest court has issued several rulings in favor of lesbians and gay men since that country became the first to outlaw discrimination on the basis of sexual orientation in its constitution.
The legal landscape in the United States is very different. Several states continue to impose a criminal ban on sex between consenting adults of the same gender, even in the privacy of their own homes. Others have enacted new laws restricting marriage to a union between one man and one woman.
There are two states that recognize same-sex partnerships, and nearly a dozen states and many more municipalities have laws banning discrimination on the basis of sexual orientation in public accommodation and employment. But the majority do not have such laws, and the prospects for enacting a federal anti-discrimination statute are bleak.
A ruling expected soon from the Supreme Court provides an opportunity to redress at least one of these issues. In the case of Lawrence v. Texas, the court is considering a constitutional challenge to the Texas sodomy law, which bans private, consensual sex between homosexual couples. When the court last reviewed a similar law in Georgia in a 1986 case, a 5-4 majority rejected the constitutional challenge.
Will the recent trend recognizing gay rights in other countries influence the court's decision this time around? The justices are sharply divided over whether it is appropriate to consider foreign and international law when interpreting the U.S. Constitution. But in a recent ruling banning executions of the mentally retarded, a majority of the court took into account that such executions had received condemnation from the world community.
The international consensus in favor of gay rights is still evolving. But the court can no longer state, as Chief Justice Warren Burger did in that 1986 case, that a decision striking down a sodomy law would "cast aside millennia of moral teaching."
Recent events have created rifts between the United States and the rest of the world over important questions of law and policy. But respect for human rights should not be among them.
When it comes to protecting the basic civil liberties of all people, including lesbians and gay men, the United States should lead the world, not lag behind it.
Laurence R. Helfer is a professor at Loyola Law School.
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