Rights of Immigrants, Gays and Lesbians, and the Disabled
RIGHTS OF IMMIGRANTS, GAYS AND LESBIANS, AND THE DISABLED
The Fourteenth Amendment to the U.S. Constitution has been key to the protection of the civil rights of immigrants, gays and lesbians, and the disabled. The amendment provides that no state shall deny "any person within its jurisdiction [geographical area over which it has authority] the equal protection of the law." This is the Equal Protection Clause. Likewise, the Fourteenth Amendment provides that no state shall deprive any person of life, liberty, or prosperity "without due process of law." Due process means an individual, if charged with a crime, must have fair legal hearings. Many legal actions involving immigrants, gays and lesbians, and the disabled are brought under the Fourteenth Amendment. Resulting court decisions reflect the morals and always changing social standards of a diverse nation.
"Give us your tired, your poor, your huddled masses yearning to breathe free." Invitation on the Statute of Liberty in New York City.
According to the American Civil Liberties Union (ACLU), some fifty-five million immigrants have come to America from its birth to the end of the twentieth century. Except for Native Americans, all people in the United States have immigrant ancestors, or are present-day immigrants. The United States has been shaped by immigrants and the inscription on the Statute of Liberty testifies to the country's commitment to immigration.
Aliens are foreign born individuals who have not become U.S. citizens through naturalization, the process by which a person becomes a U.S. citizen. Aliens are classified in several ways including non-immigrant and immigrant, and documented (legal alien) and undocumented (illegal alien). Non-immigrants do not intend to settle permanently in the United States. Examples are students, vacationers, and foreign government personnel. Persons granted immigrant status, on the other hand, intend to live and work in the United States and become U.S. citizens.
Immigrants are entitled to many of the same rights as those enjoyed by native-born U.S. citizens. Although they cannot vote or hold federal elective office until they become citizens, the Constitution and Bill of Rights generally apply. The Equal Protection Clause of the Fourteenth Amendments guarantees "equal protection of the laws" to any person living in the United States, citizen or not. States have often passed laws and regulations that violate immigrants' rights and the Equal Protection Clause generally has protected immigrants from these laws.
Even undocumented or illegal aliens (those who have not entered the country legally), once on American soil have some rights under the Constitution. To enter the country illegally is a crime punishable by deportation (forced to leave the country). However, the U.S. Supreme Court, as early as 1903 in Yamataya v. Fisher has ruled repeatedly that illegal immigrants may have the right to a hearing that satisfies the Due Process Clause of the Fourteenth Amendment.
All immigrants are subject to federal immigration law which serves as the nation's gate keeper: who enters, for how long, who may stay, and who may leave. The U.S. Congress has total authority over all immigration law. Although this authority has a long controversial history dating back to the second half of the nineteenth century, the authority was solidified in 1952 with the passage of the Immigration and Nationality Act (INA). INA became the basic source of immigration law. The INA was amended many times as Congress' preferences evolved into a patchwork of regulations reflecting who was wanted and who was not.
Beginning in 1986 Congress passed major new legislation which followed two lines of thought: (1) the need to stop illegal immigration, and (2) the need to make laws more fair for legal immigrants. The Immigration Reform and Control Act (IRCA) of 1986 set up requirements aimed at controlling the entry of illegal immigrants. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 contained measures to prevent illegal immigration from increasing and to speed up deportation of those illegal immigrants caught. On the other hand the Immigration Act of 1990 dealt with establishing limits on the number of legal immigrants admitted each year and created ways to admit more immigrants from underrepresented countries.
U.S. Supreme Court Cases and Immigrants
Many U.S. Supreme Court cases have protected immigrants from discriminatory state and local laws and enforced the idea that only Congress can enact immigrant law. In Yick Wo v. Hopkins (1886), the Court ruled that the Fourteenth Amendment's equal protection of the laws applied to immigrants as well as citizens. The decision rejected a San Francisco law clearly discriminating against Chinese. In 1915 in Truax v. Raich, the Court overruled an Arizona law and established the right to earn a living as a basic freedom that could not be denied to immigrants.
The Court's stance changed a bit in the late 1970s and 1980s. The Court upheld New York's restrictive policies denying teacher credentials to alien immigrants in Ambach v. Norwick (1979). It then upheld a California law preventing alien immigrants from serving as probation officers in Cabell v. Chavey-Salido (1982). On the other hand, the Court ruled in a 1982 Texas case, Plyler v. Doe, that children of illegal aliens have the right to attend public schools.
The mid- to late-1990s saw more state attempts to limit immigrants' rights as California voters passed the controversial Proposition 187 in 1994. Proposition 187 restricted public services, such as public school education and non-emergency health care, to illegal aliens, and required immigrant students to learn English. Congress itself passed legislation to cut social benefits such as Medicaid (health insurance) and Supplementary Security Income (additional income payments) in 1996. However, the Court took steps in League of United Latin American Citizens v. Pete Wilson (1997) and Sutich v. Callahan (1997) to restore such services.
Rights of the Disabled
Roughly forty-three million people in the United States possess one or more physical or mental disabilities. Disability was first defined in Section 504 of the Rehabilitation Act of 1973 as, "any person who has a physical or mental impairment which substantially limits one or more major life activities."
A major life activity is a basic function which the average person can perform with little or no difficulty, such as caring for oneself, walking, seeing, hearing, speaking, learning, and working. Examples of physical impairments are deafness, blindness, speech impairments, and crippling conditions. It also includes such diseases such as cancer, arthritis, and heart disease which have progressed to a point to limit a person's basic functioning. In Bragdon v. Abbott (1998) the U.S. Supreme Court ruled that infection with HIV virus (AIDS) constitutes a disability. Mental impairments include mental illness, severe emotional disturbances, traumatic brain injury, and specific learning disabilities, such as the condition commonly known as dyslexia. In every case, the disability must limit an individual's major life activity.
Society has often isolated and restricted persons with disabilities. Disabled individuals have a long history of unequal treatment and occupy an inferior status in society due to characteristics beyond their control. Disabled persons are often politically powerless and unable to pursue legal avenues to counter the discrimination. Rights of disabled persons were established in the second half of the twentieth century though Congressional legislation and in the courts.
Cases and Laws—Laws and Cases
Case decisions and legislative acts (laws) mixed together to develop the rights of disabled persons. Education of the disabled was often a driving force behind cases and laws. In 1971, Pennsylvania Association for Retarded Citizens (PARC) v. The Commonwealth of Pennsylvania established the right to a free public education for all children with mental retardation. Mills v. Board of Education of the District of Columbia established the right of every child to an education full of equal opportunities. Lack of funds was not an acceptable excuse for lack of educational opportunity. A landmark law extending civil rights to people with disabilities is the Rehabilitation Act of 1973. Section 504 of this law states, "no otherwise qualified handicapped individual shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination in any program or activity receiving federal financial assistance (monetary funds)." The court orders of the cases decided in 1971 and 1972 are basically contained in Section 504, the name by which the law is commonly referred to. This law, worded almost identically to the Civil Rights Act of 1964 which prohibited discrimination on the basis of race, color, or national origin, expanded opportunities for children and adults with disabilities in education and employment.
Closely following Section 504 was Education for All Handicapped Children Act (EHA) in 1975. This law required a free and appropriate public education for ALL children regardless of their disability. Categories of disability under EHA include specific learning disabilities making up over fifty percent of students identified as having a disability, speech impairments, mental retardation, serious emotional disturbances, and all physical impairments.
Various cases, such as Board of Education v. Rowley (1982), heard in the U.S. Supreme Court, further defined an "appropriate" education. Also, persons with mental retardation recorded victories in O'Connor v. Donaldson (1975), Youngberg v. Rome (1982), and City of Cleburne v. Cleburne Living Center (1985). The first two cases established that persons with mental retardation indeed have constitutional rights. In City of Cleburne the Court ruled that communities cannot use a discriminatory residential zoning law to prevent establishment of group homes for persons with mental retardation.
Two major pieces of legislation were passed in 1990. The Education of the Handicapped Act Amendments of 1990 changed the name of EHA to Individuals with Disabilities Education Act (IDEA). IDEA was a common term used throughout educational circles at the end of the twentieth century. This act, in addition to expanding services for the disabled, added autism and traumatic brain injury to the list of disabling conditions. In 1999 Attention Deficit Hyperactive Disorder (ADHD) was added as a disabling condition.
The second major piece of 1990 legislation was the sweeping Americans with Disabilities Act (ADA). Congress passed ADA to provide a clear and comprehensive national order for elimination of discrimination against individuals with disabilities. It was built on the foundation of Section 504 and extended coverage into the private employment sector not previously subject to federal law. ADA also extended civil rights protection into to all public services, public accommodations, transportation, and telecommunications.
Major provisions of ADA include: (a) private employers with fifteen or more employees may not refuse to hire or promote a person because of his disability alone; (b) all new vehicles, such as buses purchased by public services, must have handicapped access; (c) public accommodations such as hotels, restaurants, and malls, must be accessible and must not refuse service to persons with disabilities; and, (d) telephone companies must offer services for the deaf.
Gay and Lesbian Rights
Gay and lesbian organizations seek legal and social equality for gay men and lesbians in the United States. The terms gay and lesbian refer to people who are sexually attracted to and sexually prefer people of the same sex. The sexual preference of an individual for one sex or the other is called a person's sexual orientation. "Sexual orientation" is the phrase generally used when crafting legislation or making claims of discrimination concerning gay and lesbian rights. While the term gay can refer to either male or female, gay is generally used to refer to men. Lesbian always refers to women. Homosexual is a term which refers to either gay men or lesbians.
In the United States, through the 1950s gay men and lesbians kept their sexual orientation a secret as homosexual behavior has a long history of being considered a crime. Hiding their sexual orientation was described by the phrase "in the closet." Encouraged by the 1960s Civil Rights Movement involving black Americans and women and spurred in 1969 by a violent incident in New York City known as Stonewall, the homosexual culture began to come out of the closet and openly work for equality. The gay right movement was born.
Sexual Activity as a Crime
Since the eighteenth century colonial period, sodomy (the sexual acts of homosexuals) has been a crime, generally a felony (serious crime). Until 1961 all states outlawed sodomy. The gay rights movement made the repeal (abolishment) of sodomy laws a primary goal.
Handing the movement a setback, in 1986 the U.S. Supreme Court ruled in Bowers v. Hardwicks that homosexuals have no right to engage in sodomy even when it is performed in private and between consenting (willing) adults. The Court found state laws prohibiting such activity do not violate constitutional rights to privacy. Although controversial, the ruling would be the Court's only statement on gay and lesbian rights for almost a decade.
Serving in the Military
Gay men and lesbians fought legal battles in the 1980s and 1990s to serve in the nation's armed forces from which they had traditionally been banned. Historically, the disclosure of homosexual orientation led to discharge. Defense Department data from 1980 to 1990 showed that the various service branches discharged approximately 1500 people each year due to sexual orientation. In 1993 the newly elected President Bill Clinton, determined to keep a campaign pledge, attempted to remove the military ban against gays. However, many senior military officials strongly objected to Clinton's proposal. Clinton developed a compromise plan known as "don't ask, don't tell." Congress wrote the policy into law in September of 1993. "Don't ask, don't tell" prohibits the military from asking about the sexual orientation of its military persons without a specific reason. Two 1994 Court cases dealt with the issue of discharging personnel when they made known their sexual orientation, Meinhold v. United States Department of Defense and Cammermeyer v. Aspin. The first case to test the constitutionality of the "don't ask, don't tell" policy was McVeigh v. Cohen (1998). In each case the courts ruled to reinstate the discharged individuals.
Legalizing Gay and Lesbian Relationships
A major concern of many gay men and lesbians is the legal recognition of their relationships. A same-sex marriage is not treated the same legally as a marriage between a man and a woman. Examples of legal benefits which do not extend to same-sex relationship are survivor benefits when one partner dies, health insurance, and custody of children. The AIDS epidemic makes health insurance a vital issue to the gay and lesbian groups.
Recognition of same-sex marriage has been rejected by the courts until 1996 in Baehr v. Miike. The First Circuit Court of Hawaii ruled that denial of a marriage contract to same-sex partners violated the Equal Protection Clause of the Hawaii Constitution. The U.S. Congress, believing that same-sex marriages would soon become legal in Hawaii moved quickly to pass the Defense of Marriage Act (DOMA) in 1996. DOMA defines "marriage" and "spouse" to include only partners of the opposite sex and permits states to bar legal recognition of same-sex marriages performed in other states. A major breakthrough came late in 1999 when the Vermont Supreme Court ruled that same-sex couples should have the same state constitutional protections and rights as traditional marriages.
Issues at State and Local Levels
Gay and lesbian organizations have worked for legislation at the state and local level to ban discrimination based on sexual orientation in housing, banking, and employment. In 1998 ten states had such laws. They are California, Connecticut, Hawaii, Massachusetts, Minnesota, New Hampshire, New Jersey, Rhode Island, Vermont, and Wisconsin.
Despite these successes for gay men and lesbians, those opposed to the social and legal equality for homosexuals created a political backlash in various states during the 1990s. Calling homosexuality abnormal and perverse, the Oregon Citizens Alliance placed a voter referendum (proposed law ) on the 1992 Oregon ballot. The referendum would have prohibited civil rights protections for gays and lesbians and required local governments and schools to discourage homosexuality. The referendum was defeated with fifty-seven voting against it.
In Colorado, the state legislature took steps to ban what they saw as a growing legal tolerance of homosexuals. They passed an amendment to the state constitution prohibiting the state or any local government from passing laws to protect the civil rights of gays and lesbians. In the first gay rights case to reach the U.S. Supreme Court since Bowers in 1986, the Court found in Romer v. Evans (1996) the amendment unconstitutional. Writing for the Court, Justice Anthony M. Kennedy commented the only purpose of the Colorado amendment was to make homosexuals "unequal to everyone else. This Colorado cannot do." The decision caused emotional debate predicting future legal battles over gay and lesbian rights.
Future Rights Issues
As time passes, different groups and different issues concerning the groups discussed above will continuously come to the attention of the public, legislatures, and the courts.
Suggestions for further reading
Clendinen, Dudley, and Adam Nagourney. Out of Good: The Struggle to Build a Gay Rights Movement in America. New York: Simon & Schuster, 1999.
Cozic, Charles P. Illegal Immigration: Opposing Viewpoints. San Diego, CA: Greenhaven Press, Inc., 1997.
Lambda Legal Defense and Educational Fund. [Online] Website: http://www.lambdalegal.org (Accessed on July 31, 2000).
National Gay & Lesbian Task Force. [Online] Website: http://www.ngltf.org (Accessed on July 31, 2000).
The International Dyslexia Association (formerly the Orton Dyslexia Society). [Online] Website: http://www.interdys.org (Accessed on July 31, 2000).