Gale Encyclopedia Of American Law 3Rd Edition Volume 5 P7 ppsx

The adversarial tenor in contemporary juve- nile courts is thus an unfortunate by-product of the decision in Gault. Prosecutors must now work harder to persuade the juvenile court to find in favor of the state so that the system may take control of the juvenile. They must shift the focus of juvenile court proceedings away from the needs of the juvenile and onto the offense. This shifted focus is similar to the focus of proceedings in adult criminal court, and it amounts to a reversal of the traditional emphasis in juvenile court. FURTHER READINGS Bernard, Thomas J. 1992. The Cycle of Juvenile Justice. New York: Oxford Univ. Press. Buss, Emily. 2003. “The Missed Opportunity in Gault.” Univ. of Chicago Law Review 70 (winter). Cooper, N. Lee, Patricia Puritz, and Wendy Shang. 1998. “Fulfilling the Promise of In Re Gault: Advancing the Role of Lawyers for Children.” Wake Forest Law Review 33 (fall). CROSS REFERENCES Adversary System; Children’s Rights; Criminal Procedure; Juvenile Law. GAY AND LESBIAN RIGHTS Gay and lesbian rights seek to provide full legal and social equality for gay men and lesbians sought by the gay movement in the United States and other Western countries. The term gay originally derived from slang, but it gained wide acceptance in the late twentieth century, and many people who are sexually attracted to others of the same sex prefer it to the older and more clinical term homosexual. The drive for legal and social equality represents one aspect of a broader gay and lesbian movement that, since the late 1960s, has worked to change attitudes toward homosexuality, develop gay community institutions, and improve the self- image of gay men and lesbians. Although homosexuality has been recorded in every historical period and culture, the gay and lesbian rights movement developed only with the emergence of a self-conscious, gay- identified subculture that was willing to openly assert its demands for equality. Until the 1960s, many lesbians and gay men were secretive about their sexual orientation and frequently shared the attitude of the general society that homo- sexuality was a sickness or a sin, or both. The phrase “in the closet” refers to gay men and lesbians who hide their sexual orientation. The first national gay organizations in the United States were the Mattachine Society (1951) and the Daughters of Bilitis (1956). The emergence of the CIVIL RIGHTS MOVEMENT of the 1960s energized gay and lesbian groups, and the development of the women’s movement of the late 1960s made explicit the link between political activities and personal identity. The watershed moment for gay men and lesbians occurred in 1969 when the patrons of the Stonewall Inn, a gay bar in New York City’s Greenwich Village, forcefully resisted arrest by city police officers who had raided the bar. Stonewall became a symbol for a new set of attitudes on the part of younger gay men and lesbians who resisted DISCRIMINATION and negative stereotyping. As gay men and lesbians became more open and decided to “come out of the closet,” U.S. society was challenged to question its assumptions about homosexuality. Though most gay and lesbian rights activity remains local, national organizations such as the National Gay Task Force, the Lambda DEFENSE and Education Fund, and the HUMAN RIGHTS Campaign have played a significant role in challenging discriminatory treatment. For ex- ample, in 1974 the National Gay Task Force successfully lobbied the American Psychiatric Association to remove homosexuality from its list of mental disorders. The recognition of gay and lesbian rights has been accomplished through both court challenges and legislative action. The ability of gay and lesbian organizations to make signifi- cant financial contributions to political candi- dates has helped lead to more sympathetic hearings in the legislative arena. Criminal Prohibitions on Sexual Activity Most gay men and lesbians remained in the closet until the modern movement for equality because homosexual behavi or has been a crime throughout U.S. history. Homosexual activity includes anal sex and oral sex. SODOMY is defi ned as sexual acts against nature, either anal sex or BESTIALITY. Criminal laws against sodomy date from the colonial period, when a CONVICTION for a crime against nature could lead to a death sentence. Although few if any people have ever been executed for sodomy, the penalties for this crime remained heavy. By 2003, however, 36 states had repealed their sodomy statutes, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 48 GAY AND LESBIAN RIGHTS usually as part of a general revision of the criminal code and with the recogni tion that heterosexuals as well as homosexuals engage in oral and anal sex. Of the remaining 14 states, the sodomy statute applied only to homosexual conduct in four states, including Texas. In 1986 the Supreme Court ruled that state laws prohibiting homosexual sodomy were not unconstitutional. In Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986), the Court upheld the Georgia sodomy statute. It reasoned that there was a long legal and moral tradition against acts of sodomy and homosexuality. Therefore, homosexuals did not have a CONSTITUTIONAL right to commit sodomy. The decision was severely criticized by legal commentators and state supreme courts, which had overturned sodomy statutes based on state constitution due process clauses. The Court reversed course in 2003, over- ruling Bowers in Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508. The Court based its decision on a set of SUBSTANTIVE DUE PROCESS rulings dealing with BIRTH CONTROL and ABORTION, including the controversial deci- sion in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). Under the FOURTEENTH AMENDMENT due process clause, the Court has found certain unwritten but fundamental liber- ty interests that the state cannot restrict. These cases made clear that the due process clause “has a substantive dimension of fundamental significance in defining the rights of the person.” Therefore, women have a right to make decisions affecting their destiny, and married and unmarried couples may make decisions about birth control. This line of cases mandated that private sex acts between con- senting adults deserves similar protection. To accomplish this objective, the Court had to discredit and reverse Bowers. The Court, in a majority opinion written by Justice ANTHONY KENNEDY, found the reasoning used in Bowers to be flimsy and conjectural. The Bowers Court had framed the issue at stake as solely the right of homosexuals to commit acts of sodomy. Kennedy disagreed, concluding that the true issue had been the state’s attempt to control personal relationships through the CRIMINAL LAW. He declared that as a general rule the state should not attempt to “define the meaning of the relationship or to set its BOUNDARIES absent INJURY to a person or abuse of an INSTITUTION the law protects.” If homo- sexuals wish to their express their sexuality in certain conduct the Constitution allows them “the right to make the choice.” Bowers had also misread history. Sodomy laws directed at homosexuals had only been enacted since the 1970s and only nine states had done so. Moreover, sodomy laws in general had not been enforced against heterosexuals or homo- sexuals when the acts took place in private. Though traditional religious and cultural beliefs argued against the morality of homosexual conduct, these considerations had no bearing on the legal issue before the Court. Having discredited prior precedent, the Court declared a due process right to consensual, intimate conduct. It rejected an alternate argu- ment based on the EQUAL PROTECTION clause. That argument would have struck down the Texas law solely because it applied to acts committed by homosexual but not heterosexuals. The Court declined to go in that direction because it might lead to the redrafting of the law to ban sodomy by “same-sex and different-sex participants.” This statement IMPLIED that all sodomy laws are unconstitutional. Antidiscrimination Laws Advocates of gay and lesbian rights have sought the passage of legislation that prohibits discrim- ination in employment, housing, public accom- modations, or public service on the basis of sexual orientation. Many U.S. cities have passed gay rights ordinances that accomplish these objectives. In 1982 Wisconsin became the first state to pass gay rights legislation. At the national level, gay men and lesbians fought legal battles in the 1980s and 1990s to allow them to serve in the ARMED SERVICES.Aseries of lawsuits were filed that sought to overturn military regulations that mandated DISCHARGE for disclosing a homosexual orientation. In Meinhold v. United States Depa rtment of Defense, 34 F.3d 1469 (9th Cir. 1994), a three- judge panel ruled that Petty Officer Keith Meinhold, of the U.S. Navy, could not be discharged for stating on a national TELEVISION broadcast that he was gay. In the discharge proceedings, the Navy had taken the position that Meinhold should be discharged even though the Navy had not proved that Meinhold had committed any act of homosexual conduct. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION GAY AND LESBIAN RIGHTS 49 The Ninth CIRCUIT COURT of Appeals con- cluded that a Navy policy against homosexual conduct was constitutional, as it was based on the Navy’s professional judgment that hom o- sexual conduct “seriously impairs the accom- plishment of the military mission.” However, the court of appeals ruled that Meinhold’s statement that he was gay was not grounds for discharge. In the court’s view, Meinhold had not demonstrated “a concrete, expressed desire to commit homosexual acts.” Thus, the focus for the armed services must be on prohibited conduct and persons who are likely to engage in prohibited conduct. The issue moved into the political arena following President Bill Clinton’s election in November 1992. Clinton promised to honor his campaign pledge to exercise his auth ority as commander in chief of the armed forces and remove the military ban against gays. But the Joint Chiefs of Staff, headed by General Colin L. Powell, and many other senior Pentagon officers, strenuously objected to Clinton’s plan, claiming that ending the ban would interfere with military order, discipline, and morale. Led by Senator Sam Nunn (D-GA), chairman of the powerful Armed Services Committee, Congress demanded an opportunity to comment on the policy. Faced with increasing pressure at the beginning of his administration, Clinton agreed to a six-month delay in lifting the ban. He agreed to establish a temporary policy devel- oped by Nunn and issued a directive ordering the military to stop asking new recruits about their sexual orientation; stop investigations to ferret out gays in uniform; and suspend current cases seeking to discharge gays, as long as those cases were bas ed solely on homosexual status rather than on improper conduct. This policy, dubbed “don’t ask, don’t tell,” became perma- nent when Cong ress wrote it into law in September 1993 (Pub. L. No. 103-160, 1993 H.R. 2401 § 571[a]). With this policy, gay men and lesbians were directed to keep their sexuality hidden if they intended to pur sue a military career. After its implementation, the policy drew fierce criticism, as thousands of service members were discharged because of their sexual orientation. President BARACK OBAMA announced shortly after his inauguration that the DEFENSE DEPARTMENT would conduct a review of the policy. During his presidential campaign he indicated that he was in favor of equal treatment for gays and lesbians in the military. However, at the beginn ing of 2010 the poli cy remained in place. Congress has also considered laws that would include homosexuals as a protected class in some instances. However, these laws have met with strong resistance. In 2009, however, the House of Representatives passed an amend- ment to the FEDERAL hate crimes statute that would broaden the law to include attacks based on a victim’s sexual orientation, gender identity, or mental or physical ability. As of May 2009, the Senate had not voted on the measure, but President Obama had indicated his intention to sign the measure if passed by Congress. Legal Recognition of Gay and Lesbian Relationships Gay and lesbian activists have pressed for legal recognition of homosexual relationships. Undercurrentlawinmoststates,agaycouple is treated differently than a married hetero- sexual couple. Thus, the benefits of probate and tax law are denied same-sex couples. For example, if a partner in a same-sex relationship dies, under law, the surviving partner is not entitled to any of the deceased’s property, unless the deceased provided f or such an ENTITLEMENT in a will. With the appearance of ACQUIRED IMMUNE DEFICIENCY SYNDROME (AIDS), health benefits became particularly important to gay couples. Unless a company or government unit makes specific provisions for same-sex couples, an employee’s same-sex partner who is not employed by the organization will not be allowed to join the employee’s health plan. Faced with these disparities, gay and lesbian activists first focused their attention on DOMESTIC partnership laws that would allow unmarried couples to register their relationship with a municipality. Attempts to implement domestic partnership failed in several cities, but New York City; Madison, Wisconsin; Takoma Park, Maryland; and Berkeley, San Francisco, Santa Cruz, and West Hollywood, California, enacted this type of ordinance. However, pressur e on state governments led to the passage of civil union statutes that offer either all or most of the rights and responsibilities of heterosexual MARRIAGE. By 2009, eight states and the DISTRICT OF COLUMBIA had enacted such measures. The fight for the legalization of same-sex marriage began in Hawaii in the early 1990s, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 50 GAY AND LESBIAN RIGHTS when gay and lesbian couples filed a lawsuit when they were refused marriage licenses. The issue of same-sex marriage reached the Hawaii Supreme Court in Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993). The court ruled that prohibiting same-sex couples from marrying was a violatio n of Hawaii’s constitutional ban on SEX DISCRIMINATION. The vote rs of Hawaii derailed the RULING when they passed a REFEREN- DUM to amend the constitution to allow the state Legislature to restrict marriage to men and women only. As a result, the lawsuit was dismissed and the state restricted marriage solely to that of men and women. Similar lawsuits were filed in other jurisdic- tions, and in Massachusetts, the state ’s highest court granted gays and lesbians the right to same-sex marriage in 2003. State supreme courts in California and Connecticut ruled in favor of same-sex marriage in 2008, and the Iowa Supreme Court did so as well in 2009. In California the voters passed Proposition 8 in November 2008, amending the state constitu- tion to overturn the court decision. In May 2009 the California Supreme Court upheld the validity of the proposition. State legislatures in Vermont, New Hampshire, and Maine passed same-sex marriage statutes as well, but the voters in Maine rescinded its law in the November 2009 election. The issue of same-sex marriage is of national interest becaus e states traditionally ACCORD full faith and credit (full legal recogni- tion) to marriages performed in other states. Faced with the prospect of gay and lesbian couples flying to Hawaii to marry and then demanding legal recognition of their union in their home states, several state legislatures passed laws that forbid recognition. Congress responded by enacting the DEFENSE OF MARRIAGE ACT OF 1996 (DOMA), 1 U.S.C.A. 7. The act denies certain federal benefits and entitlements to same-sex marriage partners by defining marriage as a legal union between a man and a woman. It also allows states to ban same-sex marriages within their borders and to not recognize such marriages performed in other states. With five states recognizing same-sex marriage, legal commentators believe it is only a matter of time before married same-sex couple s challenge the constitutionality of DOMA. In contrast to the national focus on issues such as same-sex marriage, local gay and lesbian groups have spent their energies helping defend lesbian mothers and gay fathers faced with the loss of their children in custody cases. In the Virginia case of Bottoms v. Bottoms, 18 Va. App. 481, 444 S.E.2d 276 (1994), a trial judge awarded custody of Sharon Bottoms’s son to her mother, solely because Bottoms is a lesbian. The Virginia Court of Appeals reverse d the decision as an abuse of the court’s discretion and returned custody to the mother. This case indicates the problems gay men and lesbians have in court. The National Center for Lesbian Rights estimates that only approximately 100 homosexuals gained parental rights through the courts between 1985 and 1994. Despite the efforts of these local groups, several courts have continued to uphold legislation and judicial rulings that disfavor homosexuals as parents. For example, in 2001, the U.S. district court for the Southern District of Florida upheld a 1977 Florida law that prohibits homosexuals from adopting children (Lofton v. Kearney, 157 F. Supp. 2d 1327 [S.D. Fla. 2001]). Similarly, in 2002 the Alabama Supreme Court ruled unanimously to award custody of three teenagers to their father instead of to their lesbian mother (Ex parte H.H., 830 So. 2d 21 [Ala. 2002]). The states of Arkansas, Nebraska, Utah, and Mississippi also have laws that either directly or indirectly prohibit adop- tions by gays. Backlash As the same-sex marriage issue demonstrates, the efforts of gay men and lesbians to achieve social and legal equality have generated a Two men are married at the Moose Meadow Lodge in Vermont, one of the six states legally recognizing gay marriage in 2009. Vermont’s state legislature overrode the Vermont governor’s veto of a bill conferring marriage rights to same-sex couples. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION GAY AND LESBIAN RIGHTS 51 backlash from those who oppose their agenda. Domestic partnership acts and gay rights ordinances have been rejected by voters in a number of cities and municipalities. At the state level, the voters of Oregon in 1988 approved a referendum that repealed an EXECUTIVE ORDER by former governor Neil Goldschmidt that had prohibited state agencies from discrimination based on sexual orientation. Measure 8, as the referendum was labeled, never went into effect, as the Oregon Court of Appeals ruled it unconstitutional (Merrick v. Board of Higher Education, 116 Or. App. 258, 841 P.2d 646 [1992]). Undaunted by this court decision, the anti- gay Oregon Citizens Alliance placed a referendum on the 1992 Oregon ballot called Measure 9. Measure 9 was a strongly worded initiative that would have prohibited CIVIL RIGHTS protection based on sexual orientation and required state and local governments and school districts to discourage homosexuality. Proponents of the initiative believed that homosexuality is abnor- mal and perverse. The referendum was rejected on November 3, 1992, by a margin of 57 to 42 percent. In contrast, voters in Colorado signaled a distinct displeasure with gay and lesbian rights. In November 1992 Colorado took the unprece- dented step of amending the state constitution to prohibit state and local governments from enacting any law, regulation, or policy that would, in effect, protect the civil rights of gays, lesbians, and bisexuals. The amendment, known as Amendment 2, did not go into effect, as a lawsuit was filed challenging the constitu- tionality of the new provision. This lawsuit, Romer v. Evans, 517 U.S.620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996), reached the U.S. Supreme Court. In a LANDMARK and controversial decision, the Supreme Court struck down the amendment as unconstitu- tional. Justice ANTHONY M. KENNEDY, writing for the majority, declared that the Colorado provi- sion violated the equal protection clause of the Fourteenth Amendment. The Court found that the amendment did more than REPEAL state and municipal gay rights laws. The amendment prohibited “all legislative, executive or judicial action at any level of state or local government designed to protect gays and lesbians.” Under this provision, the only w ay gay men and lesbians could secure their civil rights was through amendment of the state constitution. This approach was too limited. Kennedy concluded that “[i]t is not within our constitu- tional tradition to enact laws of this sort.” The Colorado amendment classified gay men and lesbians “not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do.” The Romer decision was a major advance for gay and lesbian rights, as in it, the Supreme Court made clear that states cannot use a broad brush to limit civil rights. The political process cannot be changed to prevent gay men and lesbians from using the political and legal tools afforded all other citizens. The decision did suggest, however, that it is not unconstitutional to repeal specific legislation that favors gay rights. Legislative and Judicial Responses after Romer v. Evans State and local governments did not respond uniformly to Romer. A significant number of governmental entities expanded the legal rights of gays and lesbians. By the year 2000 ten states, the District of Columbia, 27 counties, and more than 150 cities had passed laws protecting gays and lesbians from discrimination. Most laws were limited t o prohibiting discrimination against homosexuals in the workplace. A few laws went further, however, barring gay dis- crimination by public accommodations, credit institutions, healthcare providers, educational facilities, and landlords. Conversely, other state and local govern- ments enacted measures restricting homosex- uals’ civil rights. Unlike Amendment 2 in Colorado, these measures did not generally attempt to completely exclude gays and lesbians from seeking legal REDRESS for discrimination. Instead, some state and local governments tried to prevent gays and lesbians from exercising particular legal rights traditionally exercised only by heterosexuals. The right to marry and the righ t to adopt children continue to be the two most frequent targets of these anti-gay laws. In 1993 voters in Cincinnati, Ohio, passed an initiative amending its city CHARTER to prohibit the city from adopting or enforcing any ordinance, regulation, rule, or policy that entitled gays, lesbians, or bisexuals the right to claim minority or protected status. Gay and lesbian groups challenged the constitutionality of the amendment in federal court, arguing that it denied them equal prote ction of the law. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 52 GAY AND LESBIAN RIGHTS In Equality Foundation of Greater Cincinnati v. Cincinnati, 860 F. Supp. 417 (S.D. Ohio 1994), the U.S. District Court for the Southern District of Ohio granted the plaintiffs a perma- nent INJUNCTION that precluded the charter amendment from going into effect. The District Court’s decision was overturned on APPEAL in Equality Foundation of Greater Cincinnati v. City of Cincinnati, 128 F.3d 289 (6th Cir. 1997). The Sixth Circuit Court of Appeals stated that Cincinnati’s charter amendment was different from Colorado’s Amendment 2 because the charter amendment did not deprive gays and lesbians of all legal redress in the entire state. The Sixth Circuit found that the charter amendment’s scope was limited to the confines of the city and that homosexuals’ FUNDAMENTAL RIGHT to participate in the state’s political process was not affected by the local law. Thus, the court concluded that the charter amendment was rationally related to the city’s valid interest in conserving public costs that are incurred from investigating and adjudicating sexual orientation discrimination complaints. The Supreme Court surprised many legal observers when it denied CERTIORARI to consider the Sixth Circuit’sdecision (Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 525 U.S. 943, 119 S. Ct. 365, 142 L. Ed. 2d 302 [1998]). Some plaintiffs have sought, though ulti- mately unsuccessfully, to challenge discrimina- tion under a variety of state laws. The Boy Scouts of America, an organization that refuses to admit homosexuals, has been the subject of several of these lawsuits. In 1998 the California Supreme Court ruled that the state’s human rights act did not apply to the Boy Scouts because the organization was not a business establishment (Curran v. Mount Diablo Council of the Boy Scouts of America, 952 P .2d 218 [ Cal. 1998]). The plaintiff in the case, Timothy Curran, was a Boy Scout from 1975 to 1979, when he was 14 to 18 years of age. He had a distinguished scout career, attaining the rank of Eagle Scout and earning numerous honors. After he had left the organization upon turning 18, he appeared in a series of articles in an Oakland newspaper about gay teenagers. When he later applied to become an assistant scoutmaster, scout officials denied his application due to his homosexual lifestyle. He first filed suit in 1982, but the original trial did not take place until 1990. Both the trial court and a California court of appeals held, similar to the later ruling by the California Supreme Court, that because the Boy Scouts was not a business establishment, the human rights law did not apply to them. The California Supreme Court decision was the opposite of decisions by courts in New Jersey. James Dale had been involved in the Boy Scouts from the age of eight. Like Timothy Curran, Dale was an exemplary member, earn- ing the rank of Eagle Scout. Dale was later approved for adult membership. However, while he attended Rutgers University, he became the co-president of the university gay and lesbian campus organization and appeared in an article where he admitted to being a homosexual. The Boy Scouts then revoked his membership based on his homosexuality. The New Jersey Superior Court’s APPELLATE Division, in Dale v. Boy Scouts of America, 706 A.2d 270 (N.J. Super. 1998), determined that the Boy Scouts’ policy violated the state ’s public accommodation law under New Jersey’s Law Against Discrimination, N.J. Stat. Ann. § 10:5-1 et seq. The case was eventually appealed to the New Jersey Supreme Court, which agreed with A man stands outside of the Supreme Court in protest of the case of James Dale, a homosexual who was kicked out of the Boy Scouts after becoming co-president of a gay and lesbian organization. GETTY IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION GAY AND LESBIAN RIGHTS 53 the superior court’s decision (Dale v. Boy Scouts of America, 734 A.2d 1196 [N.J. 1999]). These decisions were initially considered major victo- ries for gay and lesbian rights supporters. However, the U.S. Supreme Court reversed the decisions of the New Jersey courts in Boy Scouts of America v. Dale, 530 U.S. 640, 120 S. Ct. 2446, 147 L. Ed. 2d 554 (2000). The Court, Same-Sex Marriage: A Civil Right or a Moral Wrong? S ince the beginning of the U.S. GAY AND LESBIAN RIGHTS movement in the late 1960s, members of the movement have sought to attain CIVIL RIGHTS already granted to racial and ethnic minorities. These attempts at legal change have met with some success, yet a fundamental issue for many gay and lesbian couples, same-sex MARRIAGE, has found strong resistance, even from supporters of gay rights. Nevertheless, by 2009 the states of Massachusetts, Connecticut, New Hampshire, Vermont, and Iowa permit- ted same-sex marriage. California and Maine briefly permitted same-sex mar- riage, but voters overturned these mea- sures in 2008 and 2009 respectively. Same-sex marriage is controversial not only because it requires legal change but also because it raises a host of issues surrounding the definitions of marriage and family. The issue is packed with social and cultural beliefs and symbols that force parties in the debate to examine basic assumptions about how social life should be ordered. Though the overwhelming majority of opposition comes from heterosexuals, there are also some gays and lesbians who have doubts about the wisdom of same-sex marriage. Advocates of same-sex marriage argue that many same-sex couples consider themselves married for all intents and purposes. The only thing lacking is legal recognition by the government—in this case, the state government—that such marriages exist. The denial of legal recognition constitutes sexual DISCRIMINA- TION , resulting in the loss of legal rights and benefits afforded to married indivi- duals. Thus, unless a surviving member of a same-sex couple has been named in the deceased partner’s will, the survivor has no legal right to any portion of the deceased’s probate estate, whereas in heterosexual marriages, a surviving spouse has a legal right to such assets. In addition, same-sex couples lose out on healthcare benefits extended to heterosex- ual married couples. The legal arguments for same-sex marriage are grounded in the CONSTITU- TIONAL concepts of EQUAL PROTECTION and due process. Proponents of same-sex marriage point to the U.S. Supreme Court’s decision in Loving v. Virginia (388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 [1967]), which ruled that state laws that prohibited interracial marriages (anti-miscegenation laws) were uncon- stitutional. The case established that it is a denial of DUE PROCESS OF LAW to forbid marriages on the basis of race and that the creation of such classifications denied couples equal protection of the law because the classifications had “no legiti- mate purpose independent of invidious racial discrimination.” For advocates of same-sex marriage, Loving is an example of the proper modern legal response to irrational racial prejudice. The Hawaii Supreme Court’s decision in Baehr v. Lewin (74 Haw. 530, 852 P. 2d 44 [1993]), which held that the state must have a compelling STATE INTER- EST in order to ban same-sex marriage, used Loving as a controlling legal prece- dent. The highest courts in Massachusetts, Connecticut, California, and Iowa all agreed that state laws banning same-sex marriage violated equal protection. Opponents of same-sex marriage make three main arguments against it: the definition-of-marriage argument, the moral tradition argument, and the prag- matism argument. The definition-of-marriage arg u- ment uses basic social and cultural assumptions. Opponents claim that marriage is necessarily the union of a man and a woman and, therefore, cannot include same-sex couples. Thus, any statute that describes marriage could have only contempla ted hete ro- sexual couples, even if the statute does notusethespecifictermshusband and wife. In Jones v. Hallahan (501 S.W.2d 588 [1973]), the Kentucky Court of Appeals used this line of reasoning to prohibit same-sex marriage, noting that “marriagehasalwaysbeenconsideredas the union of a man and a woman and we have been presented with no author- ity to the contrary.” Proponents of same-sex marriage argue that cour ts h ave not been pre- sented with “aut hority to the contrary” because gays and lesbians have been ignored by historians. Major research on gay and lesbian history and anthro- pology has led some historians and legal scholars to conclude that Western and non-Western cultures have recognized same-sex relationships. In European history, stigmatizing and closeting of gays and lesbians started at the end of the medieval period and the beginning of the growth of nation-states. Thus, the North American continent was colo- nized at a time when same-sex relation- ships had lost their c ultural and legal protection. Opponents of same-sex marriage who make the moral tradition argument state that defining marriage to include only heterosexual couples is justified to preserve family values and traditional ethical notions. They point to passages in the Bible that either AFFIRM heterosexual GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 54 GAY AND LESBIAN RIGHTS in a 5–4 decision, held that forcing the organization to accept gay troop leaders violates the Boy Scouts’ right of free expression and free association under the FIRST AMENDMENT. Prior decisions by the Court had reached similar holdings. In Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557, 115 S. Ct. 2338, 132 L. Ed. 2d 487 marriages (Adam and Eve) or denounce homosexual practices (Sodom and Go- morrah). The Judeo-Christian moral tradition formed the basis of ENGLISH LAW ; thus, it must be assumed that religious teachings against homosexual relationships informed the law. The U.S. Supreme Court echoed the moral tradi- tion argument in its RULING that criminal SODOMY laws are not unconstitutional, suggesting that “millennia of moral teaching” supported a state’s right to forbid homosexual acts (Bowers v. Hard- wick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 [1986]). This case was overruled by Lawrence v. Texas (539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 [2003]), with the Court overturning Bowers. It held that a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct was unconstitu- tional, as applied to adult males who had engaged in the consensual act of sodomy in the privacy of a home. Another argument often raised with moral tradition is that heterosexual marriage is based on the need to procreate, something that same-sex cou- ples cannot do. Proponents of same-sex marriage point out that heterosexual couples who cannot procreate are not denied a marriage license. Elderly, dis- abled, and infertile individuals may choose to marry for reasons other than procreation. In addition, both heterosex- ual and homosexual couples have taken advantage of advances in technologies such as ARTIFICIAL INSEMINATION and in vitro fertilization to overcome physical limitations on procreation. Critics of the moral tradition argu- ment contend that it is based on misguided readings of the Bible and history. They note that many religious leaders support same-sex marriage and that many same-sex couples solemnize their relationship in a religious ceremony performed by a minister or rabbi. The pragmatism argument against same-sex marriage is typically made by those who support gay and lesbian rights generally but stop short of endorsing same-sex marriage. The call for marriage, they maintain, will create a backlash against the entire gay and lesbian rights movement. In addition, permitting same-sex marriage would be interpreted as legitimizing homosexuality. The prag- matic position is that gays and lesbians should be tolerated and protected; it does not extend to support the recognition of an alternative lifestyle or the expansion of the traditional concept of marriage. Along with h omosexual opponents who advance these arguments, some gays and lesbians are less than enthused with the p rospec t of same-sex marriage. This group believes that heterosexual marriage is not a good model for gays and lesbians, as it has traditionally established a hi erarch ical relationship that has produced the SUBORDINATION of women. The structure of marriage has fostered DOMESTIC abuse, economic disempowerment, and other forms of social d ysfunction. Another argument against same-sex marriage is that it will assimilate gays and lesbians into the DOMINANT culture and drain off the radicalism implicit in the gay and lesbian lifestyle. In lobbying for same-sex marriage, gay and lesbian leaders will put forward couples who most resemble th eir mainstream, het- erosexual c ounterparts. This argument has been met with skepti cism as roman- ticizing the movement. All gays and lesbians cannot be grouped as radicals, and it is to be expected that many gays and lesbians would enjoy the leg al protection that same-sex marriage would bring. When the debate has moved into the legal arena, reaction has been strong and swift. In the 1990s, proponents of same- sex marriage scored victories after courts ruled against state bans on such marriages in both Hawaii in 1993 (Baehr v. Lewin, 852 P. 2d 44 [Hawaii 1993]) and Alaska in 1998 (Brause v. Bureau of Vital Statistics 21 P. 3d 357 [2001]). In both states, a backlash ensued. Hawaiian voters ratified a state CONSTITUTIONAL AMENDMENT authorizing lawmakers to define marriage only as a union between a man and a woman. Similarly, Alaskans voted by a 2-1 margin in favor of a similar amendment. California voters in 2008 overturned the state supreme court decision authorizing same-sex marriage, and Maine voters in 2009 voted to overturn a new state law that would have permitted same-sex marriage. In 1996 Congress passed the DEFENSE of Marriage Act (DOMA) to give states the right to refuse to recognize same-sex marriages performed in other states. DOMA offered a strong rebuke to proponents by creating the first explicit FEDERAL definitions of “marriage” and “spouse” in strictly heterosexual terms, and its very name IMPLIED that the INSTITUTION of marriage needed protec- tion from them. With legalization of same-sex marriage in five states, it was expected that DOMA would be chal- lenged in the courts. Perhaps unavoidably, the debate over same-sex marriage becomes heated be- cause of the fundamental issues at stake. Proponents see marriage as socially con- structed and, therefore, open to changes that society wishes to make. Opponents see lessflexibility, citing tradition, morality, and the integrity of the family. FURTHER READINGS Sullivan, Andrew, ed. 1997. Same-Sex Mar- riage, Pro and Con. New York: Vintage Books. Wardle, Lynn D., et al., eds. 2003. Marriage and Same-Sex Unions: A Debate. West- port, Conn.: Praeger. CROSS REFERENCES Civil Rights; Marriage; Privacy. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION GAY AND LESBIAN RIGHTS 55 (1995), the Court ruled that the sponsor of Boston’s St. Patrick’s Day parade could not be forced to allow a group of gays and lesbians to participate. The Court held that parades are a form of expression and that the sponsors could not be forced to include “a group imparting a message the organizers do not wish to convey.” In Dale, the Court, per Chief Justice WILLIAM H. REHNQUIST, found that the Boy Scouts similarly engage inexpressive activity. More specifically, the Court recognized that the Boy Scout oath and creed, which include provisions admonishing scouts to be “morally straight” and “clean,” were the types of expressive conduct protected by the First Amendment. The Boy Scouts in the case proclaimed that the organization did not wish to admit homosexuals because it did not want to “promote homosexual conduct as a legitimate form of behavior.” Because the Boy Scouts could not be forced to convey a message contrary to one they did not want to convey, they could not be forced toallow homosexuals tobecome members. Gay and lesbian rights groups, who decried the decision in Dale, have continued to strive for equality. These groups have sought to put pressure on such organizations as the Boy Scouts of America. For example, the Broward County School Board in Florida voted to ban the Boy Scouts from each of the 215 schools in the district due to the organization’s discrimi- natory policies regarding homosexuals. In another form of protest, some Eagle Scouts, both gay and straight, returned their Eagle badges to the Boy Scouts’ headquarters. FURTHER READINGS Alsenas, Linda. 2008. Gay America: Struggle for Equality. New York: Amulet Press. Friedman, Lawrence M. 1993. Crime and Punishment in American History. New York: Basic Books. Pinello, Daniel. 2003.Gay Rights and American Law. New York: Cambridge Univ. Press. CROSS REFERENCES Child Custody; Ettelbrick, Paula Louise; Marriage. GENERAL ACCOUNTING OFFICE The GENERAL ACCOUNTING OFFICE (GAO), created by the Budget and ACCOUNTING Act of 1921 (31 U.S.C.A. 41), was vested with all powers and duties of the six auditors and the COMPTROLLER of the Treasury, as stated in the act of July 31, 1894 (28 Stat. 162), and other statutes extending back to the original Treasury Act of 1789 (1 Stat. 65). The 192 1 act broadened the AUDIT activities of the government and established new responsi- bilities for reporting to Congress. 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Legislation may be enacted to direct the GAO to examine a specific matter; special audits, surveys, and reviews may be performed for the committees, members, or officers of Congress; professional staff members may be assigned to assist committees in conducting studies and investigations; the comptroller gen- eral or his or her representatives may testify before committees on matters considered to be within the special competence of the GAO; and committees or members may request comments on, or assistance in, drafting proposed legislation GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 56 GENERAL ACCOUNTING OFFICE or other advice in legal and legislative matters. Further, the GAO responds to numerous re- quests from congressional sources for informa- tion relating to, or resulting from, its work, and it provides advice on congressional, administrative, and financial operations. 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By law, it is authorized and directed to make expenditure analyses of executive agencies in order to enable Congress to determine whether public funds are effi- ciently and economically administered an d expended, and to review and evaluate the results of existing government programs and activities. The scope of the audit work of the GAO extends not only to the programs and activities that the federal government itself conducts, but also to the activities of state and local In 2002, former Comptroller General David M. Walker filed suit against then-Vice President Dick Cheney in order to force the release of the Bush administration’s energy task force information. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION GENERAL ACCOUNTING OFFICE 57 . constitutionality of the amendment in federal court, arguing that it denied them equal prote ction of the law. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 52 GAY AND LESBIAN RIGHTS In Equality Foundation of. Privacy. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION GAY AND LESBIAN RIGHTS 55 (19 95) , the Court ruled that the sponsor of Boston’s St. Patrick’s Day parade could not be forced to allow a group of. heterosexual GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 54 GAY AND LESBIAN RIGHTS in a 5 4 decision, held that forcing the organization to accept gay troop leaders violates the Boy Scouts’ right of