미국(美國)의 동성애(同性愛)에 관한 연방대법원판례(聯邦大法院判例)
분야
사회과학 > 법학
저자
최희경 ( Hee Kyung Choi )
발행기관
이화여자대학교 법학연구소
간행물정보
법학논집 2003년, 제8권 제1호, 33~54페이지(총22페이지)
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    One of the most popular targets of gay rights activists has been state laws prohibiting the practice of sodomy. Although many current laws and regulations affect their lives, the attempts to regulate their sexuality by the criminalization of sodomy vividly illustrates the legal status of gay men and lesbians. The United States Supreme Court did not directly address the rights of homosexuals until the mid 1980s but afterwards it has had an important role for the constitutionality of the sodomy statute and discrimination against homosexuals. This article examines United States Supreme Court opinions discussing homosexuality and sodomy. First, this article reviews the Supreme Court`s position with respect to the constitutionality of state sodomy laws by discussing Bowers v. Hardwick. In 1986, the Court discussed the fundamental right to privacy and its application to homosexual sodomy in the Hardwick Case. Classifying previously indentified privacy right as dealing with family, marriage, and procreation, the Court distinguished consensual, non-procreative sex acts and decided that homosexual activities did not qualify for such protection. Second, this article discusses the Supreme Court`s position in Romer V. Evans. Ten years after Bowers, the Supreme Court considered gay rights under the Equal protection Clause. In Romer v. Evans, the Court ruled on the constitutionality of Amendment 2, a Colorado voter initiative prohibiting the granting of protected legal status based on sexual orientation. The Court held that Amendment 2 was unconstitutional as a status-based enactment unrelated to legitimate public interests. Lastly, this article takes a more detailed look at the treatment of homosexuality by the Supreme Court in Lawrece v. Texas. On June 26, 2003 the U.S. Supreme Court ruled that the constitutional right to privacy protects consensual, adult sexual intimacy in the home. In declaring the Texas "homosexual conduct" law unconstitutional, the court overturned the 1986 Supreme Court decision in Bowers v. Hardwick. The Case marks a turning point for gay rights in the U.S. Apparently, the U.S. Supreme Court at first did not take a protection of homosexual conducts but began to change its position by banning any discrimination against homosexuals and overturning its previous decisions in order to protect some private and consensual sexual acts. Currently, it can be predicted that homosexuals are protected by the constitutional law regarding their homosexual conducts and make efforts to get legal recognition of same-sex marriage. It appears, however, that such same-sex marriage as public institution beyond private realm is still hard to be recognized by the community.
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