Lewis Whittington

A Great Day to Be Gay

It's fitting that the U.S. Supreme Court announced its decision striking down the nation's sodomy laws on the final day of its 2002-2003 session, because it's also the week that U.S. gays and lesbians mark the 34th anniversary of the Stonewall riots. While the civil disturbance of Stonewall -- where gays, lesbians, and transvestites fought back against police who had harassed them for decades with routine bar shakedowns -- was profound enough to kick-start the modern gay liberation movement, the Lawrence v. Texas decision by the high court is equally profound for its legal, social, and symbolic impact.

Awaiting this decision -- the case was argued before the court in March -- gay America was bracing itself for a reconfirmation of the type of institutionalized homophobia that we have seen consistently in this country, or at best a decision that struck down same-sex-only sodomy laws but left standing those laws that criminalize heterosexual sodomy as well. But the Supreme Court's 6-3 split demonstrates a cultural shift from which there will be no retreat. Only one of the six, Justice Sandra Day O'Connor, who had voted with the majority to allow criminalization of sodomy in the 1986 Bowers v. Hardwick decision, argued that sodomy laws applied to both gays and straights should be legal. That still leaves a solid five-vote majority siding with Americans' right to privacy in their bedrooms.

At a time when gay civil rights initiatives are often stalled and defeated -- not one state that has put same-sex marriage up for a vote has sided with gay rights, including Hawaii -- and at a time when the Bush administration has demonstrated neglect and sometimes outright hostility toward gay rights, this decision puts equality for all back in the national discourse. It's also significant that it comes just one day after a Bush administration position paper argued that religious groups should be allowed to discriminate against (that is, summarily fire without any other cause) gays and lesbians, whatever local laws may say, while receiving federal funds.

For homosexuals, Lawrence v. Texas helps to build a legal and moral foundation for the argument that our private behavior is protected by the U.S. Constitution. It's truly historic, considering that just 43 years ago every state had sodomy laws and that in the 13 states that until today had such laws, they were inevitably used to harass and discriminate against sexual minorities. How can a woman be a good mother, conservative judges have argued as recently as this year, when her lesbian status makes her inclined to violate state law? That argument is now dead and gone. It's unconstitutional to ask what Mom does in the bedroom.

The private sexual activity between consenting adults goes to the heart of what the Constitution means in theory and in practice. It's telling that the court has explicitly overturned its own ruling in Bowers, a decision just 17 years old that upheld Georgia's sodomy laws. It's a stunning cultural shift in less than a generation. Justice Anthony Kennedy, writing the majority opinion, reversed Bowers, saying in fact that it was wrong in 1986 and remains wrong. More important, Kennedy's opinion for the majority of five signals that there will not be a morbid retreat to moralized abstractions, as was the case in the Bowers decision, in which the majority opinion was a rambling catalog of historic and religious prohibitions against homosexual behavior (even though Georgia's law applied equally to straights) that had little to do with constitutional law.

Kennedy, reading from the bench, said that homosexuals should have "the full right to engage in private conduct without government intervention" and that "the state cannot demean their existence or control their destiny by making their private sexual conduct a crime." The court's words instantly swept away the antiquated, selectively enforced, and damaging sodomy laws still active in 13 states. What's more, Lawrence bolsters privacy rights for all Americans. Remember that Roe v. Wade, which established abortion rights, also rests on the privacy rights that decided Lawrence, and that the current president and his right-wing backers would like to see that decision overturned as well.

Privacy wasn't a difficult concept to apply to the specific circumstances in Lawrence. In September 1998, Texas state police, called to the scene by a false report about a man with a gun, barged in on John Geddes Lawrence and Tyron Garner having sex in Lawrence's bedroom and proceeded to arrest the pair on misdemeanor charges under Texas's 123-year-old sodomy statute. Remarkably, the Texas law had been reaffirmed as recently as the 1970s, and the pair were convicted of "deviant homosexual conduct" -- two private individuals caught up in an Orwellian "sex crime" scenario in which their private sexual behavior was criminalized and prosecutable.

Many gays who can today applaud this decision lived secret lives for decades, existing in a world half-hidden from their families, coworkers, and straight society. As more people came out and gay politics gained ground in recent decades, and as gay Americans became mainstream and visible, rigid sodomy laws may have seemed irrelevant and virtually null. But they remained a nasty weapon to be used against gay people by anyone arguing against our equal rights, from the simple right not to be fired from jobs we're good at, to the right to raise our own children to the right to marry our loved ones. With Lawrence, the court is certainly redressing the grievous harm done by Bowers and countless other previous decisions by courts and laws passed by state legislators nationwide. No state has the right to ban gay sex: That is the inalterable law of the land, and it ushers in a solid legal basis on which we can argue for equal constitutional protections across the board.

The dissents in Lawrence came from Chief Justice William H. Rehnquist (author of the Bowers opinion) and Justices Antonin Scalia and Clarence Thomas. Scalia, writing and reading from the bench -- an unusual move, since dissenters typically issue their opinions in writing only -- argued that "the court has largely signed on to the so-called homosexual agenda." He said, rather disingenuously, that he has "nothing against homosexuals, or any other group, promoting their agenda through normal democratic means," but that sodomy laws should have been overturned only through legislative means, not through the courts. He ignored completely the historical precedent of the countless racist laws struck down by the courts -- laws that would have been easily upheld by majority vote in many parts of the country. Instead, Scalia said that the court has "taken sides in the culture war." Well, if so, it's about time it did.

Antigay forces were quick to respond to the court's decision, echoing Scalia's (and Sen. Rick Santorum's) opinions about homosexual conduct by absurdly linking a gay person's right to privacy to the rights of those who want to engage in consensual incest, polygamy, and a list of other human behaviors that have nothing to do with this debate. No, what led to Lawrence is not the triumph of kinky behavior but the decades of struggle by millions of lesbian and gay Americans fighting for their basic civil rights. Now that our equality has been confirmed by the highest court in the land, the struggle continues to apply that simple standard in every area of American life. Let's hope that gays and lesbians will be encouraged by the court's decision to not give up the necessary fights that still must be fought to achieve genuine equality. The "culture war" is not over, but today at least it looks like the side of fairness, freedom, and equality is winning.


Happy Holidays!