Sometimes, society allows its revolutions to be fast-tracked.
Women had to wait almost a century and a half for the vote, while racial minorities experienced glacial progress until the 20th century.
Not so for the LGBTQ community. In fact, until a decade or so ago, one would not have understood what LGBT stood for, let alone the recently added “Q” — for “Questioning” and sometimes “queer.”
But a sympathetic society, averse to being considered bigoted when it comes to sexual orientation, which is now generally accepted as being hard-wired into the DNA (despite some evidence to the contrary), has allowed the wheels to be greased for the equality train to speed down the tracks and pull into a station that, perhaps, isn’t yet ready for that type of traffic.
As an immigration lawyer, I’ve seen this happen up close. Ten years ago, I wrote an article for an online trade journal, Immigration Daily, in which I predicted the demise of the Defense of Marriage Act:
“Two generations ago, gays and lesbians were in danger of being deported as sexual deviants and mental misfits whose sexual orientation made them undesirable as immigrants. Today, there is the possibility that same-sex unions will be given the same consideration under the immigration framework as heterosexual relationships.”
That, in fact, is now the case. On July 17, 2013 the Board of Immigration Appeals (the appellate level of the immigration court system) handed down its precedential decision in Matter of Zeleniak, which held that DOMA is no longer an impediment to recognizing same-sex marriages between foreign nationals and, ultimately, granting the foreigner legal status.
This result was inevitable in the wake of the Supreme Court’s decision in United States v. Windsor which struck down key parts of DOMA and mandated that federal benefits be made available to same sex couples.
A decade might not seem rapid to members of the LGBT(Q) community, but it’s light years compared to the struggles of other social minorities. As recently as 1956, the Supreme Court of the United States held in Boutilier v. INS that homosexuality was a “condition” described in the Immigration and Nationality Act as a pathology and could be used to keep gay foreigners out of the United States as those who suffered from “mental infirmity.”
The court was simply following the lead of the American Psychiatric Association, which labeled homosexuality as a “sociopathic personality disturbance.” It wasn’t until 1974 that the APA removed homosexuality from the list of mental disorders, and 1990 when Congress deleted statutory language from the Act that barred “sexual deviates” from entering the United States, thereby guaranteeing that sexual orientation alone would not be used to bar an immigrant from being admitted to this country.
In less than 50 years, members of the gay, lesbian, bisexual, trans and questioning communities have gone from being considered mentally diseased to being given the right to marry. That’s an eye blink of time, compared to the century and a half Blacks had to wait before they were even considered full human beings.
Not only that, the aspect of their lives which have rendered sexual minorities social pariahs has now been converted into a standard of both normality and privilege.
‘Normality and privilege’
The normality aspect is fairly obvious. Anyone who questions the validity of same-sex marriage runs the risk of being called a bigot. Even if you believe, as I do, that the law does not justify recognition of same-sex marriage, you will be tarred with the “b” word even by educated people. Recently, during a Facebook exchange, another lawyer said that the only way I could oppose same-sex unions was if I was a homophobe. Not because I thought that equal protection and due process were being misapplied. Not because I thought that legal principles were being sacrificed to a skewed interpretation of social science.
But those in favor of marriage equality are driving the juggernaut, and have been unusually effective in achieving their goals. Most states have, or are contemplating, laws which would bar discrimination on the specific basis of sexual orientation. Pennsylvania has an attorney general who refuses to defend our own local DOMA against a constitutional challenge because she is on record as stating that it is unconstitutional to deny marriage benefits to loving same sex couples. Two state legislators recently proposed legislation that would legalize same sex marriage in the commonwealth.
And the greater triumphs have been at the cultural level. Sitcoms regularly feature same-sex couples alongside of traditional unions, a manifestation of the power of the media — or, as I like to call it, the “Will and Grace” effect. Religious objections to same sex unions are ridiculed at best, demonized at worst.
More importantly, the federal government is now clearly on the side of the LGBT community. The IRS has recently stated that it will treat same-sex couples no differently from what some are calling “opposite-gender” couples for tax purposes. And as stated before, the immigration service is now in the process of issuing visas to same-sex couples where one member of the felicitous union is a foreign national.
Here, now, is where the privilege aspect comes in. Last month, Governor Chris Christie (for reasons of his own and which most likely include an eye on the upcoming elections) signed a bill that would abolish what has come to be known as “gay conversion therapy” for minors. Many of the experts who were polled, as well as representatives of the American Psychiatric Association, believe that the therapy is not only ineffective but also harmful. There have been studies and anecdotal reports that criticize any attempt to “counsel” or use therapy to re-orient a gay person to heterosexuality as abusive.
And a few days after Christie’s well-received move, the Ninth Circuit Court of Appeals ruled that California’s law banning gay conversion therapy did not violate the First Amendment rights of therapists who wanted the option of employing the procedure. The court in Pickup v. Brown found that there was no freedom of speech, association or religion violation implicated in the ban, discounting any right on the part of either parents or medical professionals to choose a treatment that has not been definitively established as causing harm.
This sets the LGBT(Q) community apart for special protection, since it is the rare case that a medical professional or a patient is not permitted to seek or employ a preferred form of treatment where there is, as the plaintiffs in Pickup noted, “a lack of scientifically credible proof of harm.”
And back to New Jersey, we now have a state court ruling that same-sex marriage must be permitted in the Garden State becuse to do otherwise would prejudicially impact same-sex couples who are not eligible for the federal benefits authorized by Windsor. While Christie has filed an appeal and is seeking a stay during its pendency, there is a strong probability that the very “progressive” court of our neighbor state will uphold the decision to mandate same-sex unions.
And so we have come full circle. Twenty-five years ago a gay man could conceivably be barred from the United States as having a “mental pathology,” and this year, a Republican governor signs a law making it illegal to seek treatment for the same condition. Last year foreign nationals in relationships with LGBT(Q) citizens were denied the right to immigrate, and today they can obtain their ‘green cards.’
Clearly, the “Q” now stands for “quickly.”