Gay rights and the right to a family: Conflicts between liberal and illiberal belief systems

Human Rights Quarterly

Volumn 23, Issue 1, 2001, Pages 73-95

  Howard Hassmann, Rhoda E ^a  

^a MCMASTER UNIVERSITY   (Canada)

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EID: 0008808544     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (89)

1. Legislative Assembly of Ontario, OFFICIAL REPORTS OF DEBATES, 6675 (6 June 1994) (statement of Ms. Dianne Poole, Liberal Member of the Provincial Parliament for Eglinton) (concerning a debate over Bill 67, An Act To Amend Ontario Statutes To Provide for the Equal Treatment of Persons in Spousal Relationships, which was defeated).
2. Legislative Assembly of Ontario, OFFICIAL REPORTS OF DEBATES, 6675 (6 June 1994) (statement of Ms. Dianne Poole, Liberal Member of the Provincial Parliament for Eglinton) (concerning a debate over Bill 67, An Act To Amend Ontario Statutes To Provide for the Equal Treatment of Persons in Spousal Relationships, which was defeated).
3. In using the terms gays/lesbians or homosexuals throughout, I recognize that there are other sexual minorities also seeking rights, namely bisexuals and transsexuals.
4. Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III), U.N. GAOR, 3d Sess. (Resolutions, pt. 1), at 71, art. 2, U.N. Doc. A/810 (1948), reprinted in 43 AM. J. INT'L L. 127 (Supp. 1949)(emphasis added).
5. Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III), U.N. GAOR, 3d Sess. (Resolutions, pt. 1), at 71, art. 2, U.N. Doc. A/810 (1948), reprinted in 43 AM. J. INT'L L. 127 (Supp. 1949)(emphasis added).
6. See Jack Donnelly, Non-Discrimination and Sexual Orientation: Making a place for Sexual Minorities in the Global Human Rights Regime, in INNOVATION AND INSPIRATION, supra note 1, at 93 (making a case for a logical analogy between homosexuals and other groups). However, such logic is not convincing, as I will argue below, to those who view gays and lesbians as a radically different - and deviant - type of social category, as compared to those social groups who presently enjoy explicit protections against discrimination.
7. Universal Declaration of Human Rights, supra note 4, at art. 16 (3).
8. Id. at art. 16 (1).
9. See also Johannes Morsink, Women's Rights in the Universal Declaration, 13 HUM. RTS. Q. 237, 239 (1991).
10. On public opinions about gay rights in the United States, see A. WOLFE, ONE NATION, AFTER ALL 72-81 (1998).
11. To further clarify: I personally support the full, immediate, and universal implementation of all human rights for gays and lesbians. However, this article is a work of sociological analysis, and not one of legal advocacy.
12. Survey data in Canada show a rapid increase in the proportion of Canadians who are willing to accept gay marriages: in 1996, 49 percent of Canadians agreed with legal recognition of gay marriages, as opposed to 24 percent in 1992. See National Angus Reid/Southam News Poll, Public Attitudes on Specific Gay Rights Issues, 7 June 1996; L. Bozinoff & P. MacIntosh, Majority Opposes Same Sex Marriages, THE CALLUP REPORT, 21 May 1992.
13. Survey data in Canada show a rapid increase in the proportion of Canadians who are willing to accept gay marriages: in 1996, 49 percent of Canadians agreed with legal recognition of gay marriages, as opposed to 24 percent in 1992. See National Angus Reid/Southam News Poll, Public Attitudes on Specific Gay Rights Issues, 7 June 1996; L. Bozinoff & P. MacIntosh, Majority Opposes Same Sex Marriages, THE CALLUP REPORT, 21 May 1992.
14. For detailed results of these interviews, see R.E. Howard-Hassmann, The Gay Cousin: Learning To Accept Gay Rights, J. HOMOSEXUALITY (forthcoming 2000/01) available online at University of Denver, Human Rights Working Papers Series, . The author also interviewed five individuals who identified themselves as gay or lesbian; their views are not included in this analysis.
15. See, e.g., W. Schneider & I.A. Lewis, The Straight Story on Homosexuality and Gay Rights, 7 PUB. OPINION 17 ( Feb./Mar. 1994); L.M. Lance, The Effects of Interaction With Gay Persons on Attitudes Toward Homosexuality, 40 HUM. RELATIONS 329 (1987).
16. See, e.g., W. Schneider & I.A. Lewis, The Straight Story on Homosexuality and Gay Rights, 7 PUB. OPINION 17 ( Feb./Mar. 1994); L.M. Lance, The Effects of Interaction With Gay Persons on Attitudes Toward Homosexuality, 40 HUM. RELATIONS 329 (1987).
17. On the status of this research, see Chandler Burr, Homosexuality and Biology, 271 ATLANTIC MONTHLY 47 (Mar. 1993); W. Byne, Why We Cannot Conclude That Sexual Orientation Is Primarily a Biological Phenomenon, 34 J. HOMOSEXUALITY 73 (1997); J.P. De Cecco & D.A. Parker, The Biology of Homosexuality: Sexual Orientation or Sexual Preference?, 28 J. HOMOSEXUALITY 1 (1995).
18. On the status of this research, see Chandler Burr, Homosexuality and Biology, 271 ATLANTIC MONTHLY 47 (Mar. 1993); W. Byne, Why We Cannot Conclude That Sexual Orientation Is Primarily a Biological Phenomenon, 34 J. HOMOSEXUALITY 73 (1997); J.P. De Cecco & D.A. Parker, The Biology of Homosexuality: Sexual Orientation or Sexual Preference?, 28 J. HOMOSEXUALITY 1 (1995).
19. On the status of this research, see Chandler Burr, Homosexuality and Biology, 271 ATLANTIC MONTHLY 47 (Mar. 1993); W. Byne, Why We Cannot Conclude That Sexual Orientation Is Primarily a Biological Phenomenon, 34 J. HOMOSEXUALITY 73 (1997); J.P. De Cecco & D.A. Parker, The Biology of Homosexuality: Sexual Orientation or Sexual Preference?, 28 J. HOMOSEXUALITY 1 (1995).
20. See K.E. Ernulf et al., Biological Explanation, Psychological Explanation, and Tolerance of Homosexuals: A Cross-National Analysis of Beliefs and Attitudes, 65 PSYCHOLOGICAL REPORTS 1003 (1989) (also finding that people who think gays are "born that way," have more positive attitudes toward them than those who think they choose to be gay).
21. G. RADWANSKI, TRUDEAU 96 (1978).
22. See id. at 90-97.
23. For a general discussion of the value of equality in Canadian society, see PAUL. M. SNIDERMAN ET AL., THE CLASH OF RIGHTS: LIBERTY, EQUALITY AND LEGITIMACY IN PLURALIST DEMOCRACY (1996).
24. See STATISTICS CANADA, Census of Canada 1991, Religions in Canada, Ottawa: Industry, Science and Technology Canada, 1993, tbl. 1, at 8-17.
25. R. Heynen et al. (Homosexuality Committee), Homosexual Behavior and the Church: A Christian Reformed View, Looking at the Scriptures, in A CRISIS OF UNDERSTANDING: HOMOSEXUALITY AND THE CANADIAN CHURCH 68 (D. O'Leary ed., 1988).
26. See STATISTICS CANADA, supra note 19, at 12.
27. UNITED CHURCH OF CANADA, GIFT, DILEMMA AND PROMISE: A REPORT AND AFFIRMATIONS ON HUMAN SEXUALITY 71 (1984) (on file with author).
28. Id. at 77.
29. Id. at 78. For an analysis of the evolution of Christian and Jewish thought regarding homosexuals in the United States that confirms the analysis in this paper, see R. Nugent & J. Gramick, Homosexuality: Protestant, Catholic and Jewish Issues; a Fishbone Tale, 18 J. HOMOSEXUALITY 7 (1989).
30. Bill 167, 3rd Session, 35th Legislature, Ontario, 43 Elizabeth II (1994).
31. On May 20, 1999, the Supreme Court of Canada ordered the Province of Ontario to amend ils Family Law Act within six months to give gay couples the same rights to spousal support as heterosexual common-law couples, in the case of marriage breakdown. The Court also "hinted broadly that other provincial statutes that discriminate against gays ought to be changed at the same time." Kirk Martin, Gay Couples Win Rights, GLOBE & MAIL (Toronto), 21 May 1999, at A1. On April 11, 2000, the Government of Canada passed Bill C-23, giving gay and lesbian couples the same rights and responsibilities as common law heterosexual couples, although still not giving them the right to marry. See House of Commons Canada, Bill C-23, The Modernizing Benefits and Obligations Act, 2nd Sess., 36th Parliament, 48-49 Elizabeth II, 1999-2000.
32. On May 20, 1999, the Supreme Court of Canada ordered the Province of Ontario to amend ils Family Law Act within six months to give gay couples the same rights to spousal support as heterosexual common-law couples, in the case of marriage breakdown. The Court also "hinted broadly that other provincial statutes that discriminate against gays ought to be changed at the same time." Kirk Martin, Gay Couples Win Rights, GLOBE & MAIL (Toronto), 21 May 1999, at A1. On April 11, 2000, the Government of Canada passed Bill C-23, giving gay and lesbian couples the same rights and responsibilities as common law heterosexual couples, although still not giving them the right to marry. See House of Commons Canada, Bill C-23, The Modernizing Benefits and Obligations Act, 2nd Sess., 36th Parliament, 48-49 Elizabeth II, 1999-2000.
33. Legislative Assembly of Ontario, OFFICIAL REPORT or DEBATES, 6796-97 (9 June 1994) (statement of Premier Bob Rae).
34. Legislative Assembly of Ontario, OFFICIAL REPORT OF DEBATES, 6454 (19 May 1994) (statement of Hon. Marion Boyd, Attorney General); Id. at 6573 (1 June 1994).
35. Legislative Assembly of Ontario, OFFICIAL REPORT OF DEBATES, 6641 (2 June 1994) (statement of Gary Malkowski, New Democratic Member of the Provincial Parliament for York East).
36. Legislative Assembly of Ontario, OFFICIAL REPORT OF DEBATES, 6671 (6 June 1994) (statement of Hon. Elmer Buchanan, Minister of Agriculture, Food and Rural Affairs).
37. Legislative Assembly of Ontario, OFFICIAL REPORT OF DEBATES, 6626 (2 June 1994) (statement of Mrs. Joan M. Fawcett, Liberal Member of the Provincial Parliament for Northumberland).
38. Legislative Assembly of Ontario, OFFICIAL REPORT OF DEBATES, 6582 (1 June 1994) (statement of Mr. Charles Harnick, Progressive Conservative Member of the Provincial Parliament for Willowdale).
39. See V. Shepherd, The United Church and Ordination of Active Homosexuals: A Critique, in A CRISIS OF UNDERSTANDING, supra note 20, at 35.
40. For a fuller discussion of the values of secularism and personal privacy in liberal society, see Rhoda E. Howard, HUMAN RIGHTS AND THE SEARCH FOR COMMUNITY 23 (1995).
41. W. Lienemann, Churches and Homosexuality: An Overview of Recent Official Church Statements on Sexual Orientation, 50 ECUMENICAL REV. 8 (1998).
42. D.G. CASSWELL, LESBIANS, GAY MEN, AND CANADIAN LAW 638 (1996).
43. See Nicholas Toonen v. Australia views adopted on 31 March 1994, U.N. Human Rights Committee, 50th Sess., Comm. No. 488/1992, U.N. Doc. CCPR/C/50/D/488/1992 (1994), reprinted in U.N. GAOR, 49th Sess., Supp. No. 40, at 226-37, U.N. Doc. A/49/ 40 (vol. II) (1994). For discussion of this case, see L.R. Helfer & A.M. Miller, Sexual Orientation and Human Rights: Toward a United States and Transnational Jurisprudence, 9 HARVARD HUM. RTS. J. 61 (1996).
44. See G.M. Herek, Heterosexuals'Attitudes Toward Lesbians and Gay Men: Correlates and Gender Differences, 25 J. SEX RES. 451 (1988).
45. On gays and urbanism, see GILBERT HERDT, SAME SEX, DIFFERENT CULTURES: EXPLORING GAY AND LESBIAN LIVES 171-73 (1995).
46. See E. Faulkner, Anti-Gay/Lesbian Violence in Toronto: The Impact on Individuals and Communities, Ottawa, Canada: Dept. of Justice, 1997 (TR1997-5e), at xi.
47. See Jeff Vos, Suppressed Facts III: The Homosexual Threat (visited 12 Dec. 1997)
48. See id.
49. See id.
50. See id.
51. See id.
52. See generally, MARY DOUGLAS, PURITY AND DANGER: AN ANALYSIS OF CONCEPTS OF POLLUTION AND TABOO (1966).
53. See id.
54. M. McIntosh, The Homosexual Role, in QUEER THEORY/SOCIOLOGY 35 (S. Seidman ed., 1996).
55. See also WILLIAM N. ESKRIDCE, JR., THE CASE FOR SAME-SEX MARRIAGE 183-91 (1996).
56. See J. Weeks, The Construction of Homosexuality, in QUEER THEORY/SOCIOLOGY, supra note 48, at 41. Weeks is what is known as a "4constructivist" among queer theorists, as opposed to "essentialists," who argue for an essential homosexual identity rooted, presumably, in some aspect of genetics, biology, or psychology. The author's own analysis, as should be clear from this paper, tends toward the constructivist position.
57. See id. at 45.
58. See Oscar Wilde, 1854-1900, Author (visited 26 Oct. 2000) .
59. See B.D. Adam, Structural Foundations of the Gay World, in QUEER THEORY/SOCIOLOGY, supra note 48, at 111.
60. See BARBARA EHRENREICH, THE HEARTS OF MEN: AMERICAN DREAMS AND THE FLIGHT FROM COMMITMENT 9-10(1983).
61. See Chris Dunton & Mai Palmberg, Human Rights and Homosexuality in Southern Africa, 19 CURRENT AFR. ISSUES 21 (1996). See also O.P. Amory, "Homosexuality" in Africa: Issues and Debates, 25 ISSUE: A JOURNAL OF OPINION 5 (1997).
62. See Chris Dunton & Mai Palmberg, Human Rights and Homosexuality in Southern Africa, 19 CURRENT AFR. ISSUES 21 (1996). See also O.P. Amory, "Homosexuality" in Africa: Issues and Debates, 25 ISSUE: A JOURNAL OF OPINION 5 (1997).
63. Canadian Broadcasting Company, The World at Six (radio), 5 Aug. 1998.
64. See HERDT, supra note 39.
65. See id.
66. See id.
67. See id.
68. See id. The case of the Sambia raises an interesting question for human rights universalists. The Sambia believe that young males have no semen in their bodies, and can only acquire semen through performing fellatio on older males. Thus boys in the seven- to ten-year-old age group perform fellatio on older boys. Eventually, the younger boys become the recipients of oral sex, "donating" semen rather than receiving it; later still, they marry and give up such activities. Id. at 114-15. Does this "boy insemination" violate children's rights and if so, what, if anything, should be done about it?
69. See A.C. KINSEY ET AL., SEXUAL BEHAVIOR IN THE HUMAN MALE (1948).
70. See id.
71. See id. at 651.
72. See EDWARD O. LAUMANN ET AL., THE SOCIAL ORGANIZATION OF SEXUALITY: SEXUAL PRACTICES IN THE UNITED STATES 289 (1994).
73. Id. at 293. Note that the relevant criterion here was identity, not activity.
74. See S. LEVAY, QUEER SCIENCE: THE USE AND ABUSE OF RESEARCH INTO HOMOSEXUALITY 61-62 (1996).
75. For a detailed discussion of the state of the international campaign for gay and lesbian rights, see Douglas Sanders, Getting Lesbian and Gay Issues on the International Human Rights Agenda, 18 HUM. RTS. Q. 67 (1996).
76. See, e.g., S.O. Murray, The Will Not To Know: Islamic Accommodations of Male Homosexuality, in ISIASIJC HOMOSEXUALITIES: CULTURE, HISTORY, AND LITERATURE 14 (S.O. Murray & W. Roscoe eds., 1997); S. A. Wawrytko, Homosexuality and Chinese and Japanese Religions, in HOMOSEXUALITY AND WORLD RELIGIONS 199 (A. Swidler ed., 1993); HERDT, supra note 39.
77. See, e.g., S.O. Murray, The Will Not To Know: Islamic Accommodations of Male Homosexuality, in ISIASIJC HOMOSEXUALITIES: CULTURE, HISTORY, AND LITERATURE 14 (S.O. Murray & W. Roscoe eds., 1997); S. A. Wawrytko, Homosexuality and Chinese and Japanese Religions, in HOMOSEXUALITY AND WORLD RELIGIONS 199 (A. Swidler ed., 1993); HERDT, supra note 39.
78. For a list of these countries as of the mid-1990s, see Laura Bruni, Index Amorum Prohibitorum, 24 INDEX ON CENSORSHIP 195 (1995).
79. C. Niebuhr, Anglican Conference Takes Tough Line on Homosexuals, N.Y. TIMES (Int'l Ed.), 6 Aug. 1998, atA1, A8.
80. See Swapo Slams Gays: Swapo Vows To "Uproot" Homosexuality in Namibia, Electronic Mail and Guardian (South Africa), 5 Feb. 1997, available on .
81. Id.
82. For information on Mugabe's education, see N.C. BORCKMAN, AN AFRICAN BIOGRAPHICAL DICTIONARY (1994).
83. For a discussion of the Zimbabwe Book Fair incident, see Dunton & Palmberg, supra note 55, at 8.
84. Khalid Duran, Homosexuality and Islam, in HOMOSEXUALITY AND WORLD RELIGIONS, supra note 69, at 181, 186.
85. Id. at 189.
86. Jack Donnelly, Unfinished Business, 31 POL. Sci. 533 (1998).
87. For a discussion of women as inherently shameful, see Howard, supra note 34, at 135.
88. Universal Declaration of Human Rights, supra note 4, at art. 16(3).
89. Donnelly, supra note 78, at 533.