Abstract
Discrimination at the work place as a result of sex orientation is a common occurrence in virtually all countries. Hiring, promotion and employee identification are in most cases biased on one’s sexual orientation making homosexuality and same-sex marriages an important issue with regards to employment today. Homosexuality and same-sex marriage, however, do not have a rich history as there is avowedly very little about them in the past. The two are nonetheless some of the most hotly debated issues currently; debates that have seen the enactment of several laws in the world over that either prohibit or allow homosexuality and same sex marriages. This proposed paper will seek to will seek to look into some of the issues, challenges and opportunities relating to homosexuality and same sex marriages at the work place
Key Words: Homosexuality, Same-sex marriage, law
Homosexuality and same sex Marriage in the work place
Homosexuality, commonly perceived as the counterpart of heterosexuality, is a habit that encompasses several same-sex orientation phenomena. The definition of the term homosexuality has always mainly focused on sexual acts and attraction between people belonging to the same gender though some scholars maintain that the term can also be used to designate the emotional bonding and romantics between people of the same sex. The issue of same-sex marriages and homosexuality are a common source of discrimination with the work place being notable as one of the places in which discrimination on the grounds of one’s sexual orientation is overly common. In this regard, this proposed paper will seek to look into some of the issues, challenges and opportunities relating to homosexuality and same sex marriages at the work place.
While acknowledging that there are have been several attempts to conclusively define same sex marriages, the paper will start by trying to define marriage and same sex marriages. Confessedly, efforts to define same-sex marriages are often faced with hurdles considering that a marriage according to several literary works is defined as the legal union between a man and a woman. However, in its basic form, a same sex marriage is the marriage between people of the same sex.
Admittedly, even though it is reported that the term homosexuality was already in use as early as the 1200s, the history of Homosexuality cannot be accurately underpinned. Nonetheless, Mondimore (1996) on his part upholds that the term homosexuality was not existence prior to 1896 when it appeared in a pamphlet in the form of an open letter the German minister of justice. Pointing that German word for homosexuality is homsexualitai, Mondimore (1996) supports his assertion by saying that even Greek and Latin, from which several words have always been traced from, did not have any word whatsoever with the same connotation as homosexuality. Reportedly, there were several accounts of same sex sexual encounters in Greek societies just like there were in Germany.
Also notable in light of the history of homosexuality is the fact that the first gay rights organization to be established in America was formed in 1924 by Henry Gerber, a German doctor, inspired to do so by Hirschfiled but was quick to be dissolved because of harassment by the police (Boyd, 2003). By 1940, the homophile movement had gradually risen to recognition through the use of sit-ins, picketing as well as small marching to draw attention (Sex and Society, 2010). During the 1950s three major homosexuality movements were formed that encompassed the first ever lesbianism organization was formed in the United States (Sex and Society, 2010). The three organizations, Mattachine Society, ONE and the Daughters of Bilitis, were famous for their publications that endeavored to change the society’s perspective about homosexuality. After World War II, homosexuality had become relatively a common phenomenon in the society and was increasingly being tolerated by society members.
The idea of same sex marriages has always been treated with a lot of resistance and as Gerstmann (2004) reports, arguments based on the definition of marriage, traditions and religions are often against same sex marriages and always carry the same message that marriage should by all means be exclusively heterosexual; a reason that can be perceived to be greatly based on morality and ethics. However, in the world over, the question of whether or not to recognize same sex marriages remains a political and a constitutional question. The legalization of same sex marriages, not forgetting homosexuality, is slowly but gradually gaining momentum as several states are enacting or amending existing laws to legalize this kind of marriage and sexual orientation. Since 2001, more than 10 countries, inclusive of Argentina, Canada, Norway South Africa and Spain have legalized or shown intention of legalizing same sex marriages.
The laws legalizing same sex marriages and homosexuality, as expected, are causing conflict between the law and religious belief. It has always been reported that clerics in countries that have legalized same marriages are expressing fear that the legalization of homosexuality and same sex marriages may force them to perform same sex marriages against their religious beliefs. For example, the catholic bishop of Copenhagen, Denmark was recently reported expressing his fear that the move by politicians to enact a law that forces churches to perform same sex marriages inside their sanctuaries is overly against their wish. The bishop retorts that ever since same-sex marriage was legitimatized in Denmark in 1997, the ceremony was being carried in the church after the service but since the vote by the politicians, they have been forced to conduct the ceremony during the service.
In an effort to outline the trend that the issue if legalization of same sex marriages has taken, the paper will outline some court cases that were ruled in favor or against homosexuality. To achieve the paper will look at the Bowers v. Hardwick and Lawrence v. Texas cases. In the Bowers v. Hardwick, Hardwick was accused of violating the Georgia statute that outlaws sodomy when sodomy he had intercourse with another consenting male. Though not prosecuted, Howard, for fear of being prosecuted in future, challenged the constitutionality of the laws citing that the law divested him of the right to privacy (Webber, 1997). However, the court in a 5-4 ruling upheld the constitutionality of the sodomy statute of Georgia (Webber, 1997; Richards, 2009). Unlike the Bowers v. Hardwick case, the Lawrence v. Texas case was ruled against the sodomy law. In the Lawrence v. Texas case, Lawrence was found engaging in sex with a consenting man by a Houston police officer responding to a weapons disturbance report. In a 6-3 ruling, the court ruled that the sodomy laws unconstitutional and went ahead to invalidate the laws in thirteen other states in what can be seen as a major boost to same-se x marriages and homosexuality (Richards, 2009). Other cases that might be importance with regards to homosexuality and same-sex marriage are the Romer v. Evans and Ablev. US cases.
As mentioned above, homosexuality is often met with mixed reactions with the worst affected people perhaps being employees in various fields who most commonly face discrimination because of their Sexuality. Massachusetts became the first state to legalize gay marriages following a ruling by the Supreme Judicial Court that the ban on same-sex marriages was unconstitutional (Shilling, 2010; Sargeant, 2011). This court ruling prompted the enactment of the law legalizing such types of marriages which became effective in 2004. The paper will then look at three legislations enacted in the United States with sole aim of safeguarding the rights of the right of homosexuals. There exist a number laws in the United State aimed at protecting homosexual employees from unfair treatment. The Employment Non-Discrimination Act (ENDA) is one such law which serves to protect gays and lesbians from discrimination during hiring. Introduced to congress for the first time in 1974, ENDA could not be passed by the congress six times until in the year 2007 when it was reintroduced for the seventh time (Sex and Society, 2010; Sargeant, 2011). Notwithstanding, the ENDA law has always been damned that I allows lesbians and gays to serve in the US military. Such criticisms, as highlighted in Sex and Society (2010), overlook that fact the several homosexuals have served in the military ever since the Revolutionary war of 1775-1778. However, these damnations were literally brought to a halt with the enactment of the “Don’t Ask, Don’t tell policy signed by Bill Clinton in 1990. Also related to the ENDA law are Chapter 21 of the Texas Labor Code and VII of the Civil Rights Act of l964 which both prohibit any form of employment discrimination because of sexual orientation.
Even so, several nations still have conflicting legislations that outlaw same sex marriages. In United States for instance, the Defense of Marriage Act, commonly abbreviated as DOMA was enacted with a view of giving a federal definition of marriage and also deny same sex couples the federal benefits entitled to married couples (Shilling, 2010). Signed into law by the then president of the United States, Bill Clinton, the law defines marriage as exclusively heterosexual and gives states the authority to reject same marriages contracted in other states (Ruskay-Kidd, 1997). This law that was passed by the congress with a very huge margin has always been seen as response to a court ruling in Hawaii which made it likely that same sex marriages could be allowed in Hawaii (Ruskay-Kidd, 1997). The Obama government recently announced that section three of this law was unconditional before adding the government would no longer defend the law in court- this case only be deemed as a major setback the DOMA law.
Concisely, Even though same sex marriages were initially prohibited in the various countries, several states currently have legislations that permit same sex marriages. In the US for instance, there are three laws, namely the ENDA law, Civil Rights Act and Texas Labor Code the that either meant wholly to safeguard homosexuals against discrimination or contain provisions that uphold the right of people with same sex orientation. Finally the paper will try to provide some personal views relating to existing solutions to same sex marriage.
References
Boyd, N. A. (2003). Wide-Open Town: A History of Queer San Francisco to 1965. London: University of California Press.
Gerstmann, E. (2004). Same-Sex Marriage and the Constitution. New York, NY: Cambridge University Press.
Mondimore, F. M. (1996). A Natural History of Homosexuality. Maryland: John Hopkins Universty Press.
Richards, D. A. J. (2009).The sodomy cases: Bowers v. Hardwick and Lawrence v. Texas. Kansas: University Press of Kansas.
Ruskay-Kidd, S. (1997). Defense of Marriage and the Overextension of Congressional Authority. Columbia Law Review; 1435-1480.
Sargeant M. (Ed.) (2011). Age Discrimination and Diversity: Multiple Discrimination from an Age Perspective. New York, NY: Cambridge University Press.
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Shilling, D. (2010). Lawyers Desk, Book 2010. New York, NY: Aspen Publishers
Sullivan, A. (2004). Same-Sex Marriage: Pro and Con. Knopf Doubleday Publishing Group
Webber, D. W. (1997). AIDS and the Law. New York, NY: John Wiley and Sons, Limited.
