by Judy Joyce

Created on: September 14, 2008

GAY RIGHTS ISSUES ARE DIFFERENT FROM RACE-RELATED CIVIL RIGHTS IS THE UNITED STATES.

Race-related Civil Rights issues are fundamentally different than Gay Rights issues because the Federal Constitution does not identify, nor has it been interpreted by the courts to include, protection for personal lifestyle. When issues identified: as age, race, color, gender or national origin are addressed in court cases, the state has an additional tier of evidence to prove when a case before the court involves a fundamental right. That case, of course, must have as an element an action taken by the State and not an individual.

For this reason, where an individual state has added the term "sexual orientation" to it's State constitution, court cases involving "sexual orientation" raise the burden of proof for a case involving State action to the level of that State's fundamental rights. In those cases, the Gay Rights issue has the legal status of age, race, color, gender or national origin.

While citizens may misinterpret this difference in Constitutional rights to be a clash between Federal and State's rights, that is not true. As a matter of law, that concern is overridden by another Federal Constitution-al principle. That principle provides that any right not provided by the Federal Constitution is left to the States. A State, however, may only provide more rights for it's citizens, not less than the Federal Constitution would do.

While some might contend that Gay discrimination issues are, at their core, inherent in the fundamental rights of every individual, Gay activists have failed to demonstrate to an acceptable level of legal or scientific certitude that engaging in gay sexual conduct is something they are compelled by nature to do. The argument fails on the same prin-
ciple that it would fail for heterosexuals. There are single gays and single straights who do not engage in sexual conduct at all. To be fundamental, the characteristic at issue must be one that is not subject to control by the human being themself.

In that gay men and gay women enjoy the same legal rights as all men and women in the general population, but Civil rights have been denied to those of certain skin color, gender, or national origin, the Gay Rghts issue cannot parallel the Civil Rights issue as a matter law.

More recent questions involving issues of marriage rights already sound (that's lawyer talk for "are heard" in contract. This can be understood as logical in that court processes identify a civil marriage ceremony as one in which an oral contract is made before witnesses between the bride, the groom, and the State. In religious ceremonies, the contract is an oral contract made before witnesses between the bride, te groom and God. In both instances, after the ceremony the contract is signed and a certificate given to memorialize it. Whether the contract is called a marriage or domestic partner contract, the rights conferred are basically the same as regards the operation of State law.

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