Gay Americans and the US Supreme Court
Homophobia and our Highest Courts of Law
THIS ARTICLE WAS WRITTEN ON SUNDAY, JUNE 10, 2007
HOMOPHOBIA AND OUR HIGHEST COURTS OF LAW
Anti-gay bigotry seems more firmly entrenched than ever when reviewing message boards dedicated to discussions of religion, faith, and morality. I recently visited a message board dedicated to discussions of the arts, and found the following comment pertaining to homosexuality posted on one of the message boards:
"It's very depraved behavior." (referring to gay sex).
My response is as follows:
I cannot express, in words, the extent to which comments of this nature both sicken and disgust me. I am openly gay, and am considered by some people to be a gay "activist." I have no formal legal training, but decided, several years ago, to learn as much about the US Constitution and constitutional law as possible, because I concluded that the fight for gay equality and eventual full acceptance in the US will inevitably involve the federal and state court systems. I have been vindicated in this conclusion by a string of recent victories won by the gay and lesbian community. Few heterosexuals are aware of the fact that it remained illegal, in about 14 states, for gay Americans to have sex, even in the privacy of their bedrooms, up until June 2003. In 1986, the US Supreme Court -- packed by Ronald Reagan -- handed down a decision upholding the Georgia sodomy statute (and other state statutes criminalizing gay sex), which mandated that any person convicted under this measure receive a minimum prison term of one year and a maximum prison terms of 20 years (see Bowers v. Hardwick, 478 U.S. 186 (1986)).
A gay bartender named Michael Hardwick, who had been the target of repeated police harassment, was arrested in his own bedroom in 1982 after the police, who were admitted into his home in error by a houseguest to serve Hardwick with a warrant for public drunkenness, found him engaging in consensual oral sex with another man. Although the District Attorney declined to prosecute Hardwick under the sodomy statute, Hardwick filed suit under 42 U.S.C. section 1983 against the State of Georgia, contending that this statute (and, by extension, similar statutes in 24 other states) violated his right to sexual privacy under the Due Process Clause of the Fourteenth Amendment. The district court dismissed Hardwick's complaint under Rule 12.b) 6 (failure to state a claim upon which relief can be granted). A divided panel of the US Court of Appeals for the Eleventh Circuit reversed the dismissal of Hardwick's suit by the district court (760 F.2d 1202 (1985)), finding for Hardwick. The state Attorney General, Michael Bowers, appealed the decision of the US Court of Appeals to the US Supreme Court.
In an opinion that shocked even conservative Court-watchers, the Court upheld the sodomy statute as applied to gay sex, even when such sex occurred in the privacy of the homes of gay Americans. The tone of the 5 – 4 majority was sneering, contemptuous, and vitriolic; Chief Justice Burger’s concurrence piously observed that “to hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching” and “in constitutional terms there is no such thing as a fundamental right to commit homosexual sodomy.” (The Court repeated the phrase "homosexual sodomy" over and over again, as though this phrase was imbued with legal merit that became apparent with sheer force of repetition.)
Justice Lewis Powell, who cast the deciding fifth vote in favor of the State of Georgia, admitted in October 1990 to the National Law Journal that he had made a serious mistake, and that, on reflection, he should have voted in Hardwick’s favor. He further stated that he had voted to hear the case merely because he had been interested in what the Court would do with the case, not because he was concerned about any weighty jurisprudential or constitutional principles. Welcome as it was to hear this Justice (who by then had retired) admit that he had made a mistake, this did nothing to ameliorate the damage that Bowers worked in the lives of gay Americans up and down the country. Conservative federal judges expanded the narrow holding of the Court (which merely upheld the right of the states to criminalize gay sex) to create a “gay exception” to other Constitutional protections. Legislative bodies cited Bowers in all-too-frequently successful attempts to derail the enactment of proposed anti-discrimination legislation on the grounds that they could not possibly pass legislation that would, by definition, protect a class of criminals from discrimination in employment, housing, and access to places of public accommodation. Lesbian mothers lost custody of their own children on the grounds that they were unconvicted felons. But while Powell deserved some measure of thanks for his acknowledgment that he had made a mistake, the behavior of Attorney General Michael Bowers was nothing less than disgusting, not to mention a case study in gross hypocrisy.
For almost an entire decade during the 1980s – while defending the right of his office to prosecute gay men and lesbians for having consensual sex in the privacy of their own homes – Michael Bowers had been engaged in an adulterous relationship. At that time, adultery was a serious crime in the State of Georgia, carrying similar stiff penalties as those retained for gay sex. This fact did nothing, however, to slake Bowers’ prosecutorial thirst for the blood of gay Americans. In 1990, Bowers further attempted to slake that thirst by withdrawing a job offer that had been made to an openly gay woman named Robin Shahar, who had applied for and had been offered a job working for the Georgia Attorney General’s office – on the grounds that, by entering into a commitment ceremony with her female partner, she was no longer fit for purpose. A deeply divided US Court of Appeals for the Eleventh Circuit, applying the balancing test established by the US Supreme Court in Pickering v. Board of Education, 391 U.S. 563 (1968), determined that Sharhar’s First Amendment rights to intimate and expressive association were outweighed by Georgia’s interest “as an employer in promoting the efficiency of the Law Department’s important public services.” Attorney General Bowers apparently saw no conflict of interest in his personal criminal behavior and the “important public services” of his office.
For almost two decades following the blow dealt to the gay community by the US Supreme Court in Bowers, gay activists turned their attentions to the refuge offered them by state constitutional guarantees. Most state constitutions are more generous, either by their terms or as construed by state supreme courts, with respect to the privacy guarantees they afford their citizens than is the US Constitution, as interpreted by the US Supreme Court. A decision handed down by a state supreme court, finding a state statute unconstitutional on state constitutional grounds alone, cannot be appealed to the US Supreme Court (this is a fundamental precept of our judicial federalism). The US Supreme Court is the ultimate arbiter of US Constitutional law and issues arising from interpretations of the US Constitution; a state high court, on the other hand, is the ultimate arbiter of state constitutional analysis and issues arising from interpretations of the relevant state constitution. Only when a state constitution is amended in such a manner as to deny to any of the citizens of that state a right which is guaranteed them by the US Constitution may the US Supreme Court (or any other Article III court) interfere with or review a decision handed down by the state supreme court (for example, a decision striking down the amendment in question). Gay activists won their first victory by attacking state sodomy statutes in state court in Kentucky (Kentucky v. Wasson, 842 S.W. 2d 487 (1992)), and went on to win a string of victories in state after state.
On June 6, 2003, the US Supreme Court handed down a decision (Lawrence v. Texas, 539 U.S. 558 (2003)) explicitly and bluntly reversing Bowers. By this point in time, the number of states with sodomy statutes prohibiting consensual gay sex had dropped from 25 at the time that Bowers was handed down, to about 14, reflecting the victories that the gay community had won at the state level by invoking state constitutional analysis before the respective state high courts. The grounds on which Bowers had rested had also been seriously eroded by a case involving the rights of gay Coloradans following the passage, in that state, of the infamous “Amendment 2” to the state constitution. Enforcement of this amendment was permanently enjoined by the District Court for the City and County of Denver (a state court) and never took effect (the US Supreme Court upheld the permanent injunction in Romer v. Evans, 517 U.S. 620 (1996), using strong language to emphasize the dignity of gay Coloradans, thereby implicitly undermining Bowers). This state constitutional amendment had the “immediate effect” of repealing all ordinances, statutes, and executive policies, in both the public and the private sectors, insofar as these measures protected gay Coloradans from discrimination at the hands of heterosexual Coloradans. The amendment had the “ultimate effect” of permanently restructuring the political process in the State of Colorado by making it impossible for legislative or executive bodies ever again to pass similar, or more protective, measures protecting gay people from discrimination at the hands of heterosexual Coloradans, regardless of how rampant or severe such discrimination became. Existing measures, however, still protected heterosexual Coloradans from discrimination at the hands of gay Coloradans, and future measures could still have been passed protecting heterosexual Coloradans from discrimination at the hands of gay Coloradans. One class of Coloradans, and only one class of Coloradans (gay men and lesbians) had been identified by Amendment 2, and the adoption of measures intended to prohibit any and all forms of discrimination against members of this class was permanently removed from consideration by the normal political processes within that state. For all intents and purposes, heterosexual Coloradans had granted to themselves an unconditional and unrestricted license to discriminate against gay Coloradans.
The US Supreme Court, in striking down Amendment 2, held that “A State cannot so deem a class of persons a stranger to its laws.” The Court held that Amendment 2 was nothing less than a facial violation of the Fourteenth Amendment's Equal Protection Clause, and threw this amendment out in a strongly-worded opinion.
Fundamentalist Christians and other gay-bashers repeatedly claim that gay Americans seek “special rights,” and the backers of Colorado’s Amendment 2 made it clear that they intended this measure to prevent gay Coloradans being granted “special rights” or “special protections.” The Romer Court eviscerated this claim, declaring that “We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.”
Lawrence involved a fact pattern remarkably similar to that implicated in Bowers. On this occasion (on September 17, 1998), Houston sheriff’s deputies entered the home of a gay man (John Lawrence) with weapons drawn and found him having sex with a partner (Tyron Garner) (a homophobic neighbor tried to get these openly gay men into trouble by filing a false complaint, alleging a weapons disturbance, calculating that the police would arrive to find Lawrence and Garner having sex; this neighbor subsequently served a 30-day jail term for filing a false police complaint). This sexual act ran afoul of Section 21.06 of the Texas Penal Code, which prohibited same-sex oral and anal intercourse. Although the men were convicted by a trial court and although their convictions were affirmed by the Court of Appeals for the Fourteenth District (an influential Texas state court of appeals), the men continued to fight, eventually petitioning the US Supreme Court for a writ of certiorari.
To the amazement of many legal observers, the US Supreme Court granted the writ, and insisted that both the petitioners and the State of Texas brief the Court as to whether Bowers v. Hardwick should be overruled. This was itself unusual; the Court usually permits the state merely to submit a full record of all proceedings that took place, without requiring the state to brief the Court as to why the statute in question should be upheld. The decision was handed down on June 26, 2003; the US Supreme Court explicitly and bluntly reversed Bowers, taking the unusual step of implicitly apologizing to the gay community both for its failure to apprehend the true nature and extent of the liberty interest at stake, and for the manner in which the Court had slighted and demeaned the gay community in Bowers. More specifically, the Court wrote that “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.” The Court also noted that “The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” [emphasis added]
In ringing tones, the Court observed that “Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”
We do not live in a theocracy. We do not live in a society where the will of religious fundamentalists is inscribed into the criminal laws. We live in a multicultural, pluralistic society; a society in which people of vastly divergent belief systems live together, cheek by jowl. The sentiment expressed by the person who opined that gay sex is “depraved behavior” is illustrative of the extent to which religious intolerance is systemic in American society, and continues to disease the cultural discourse despite the opinions of developmental psychologists, clinical psychologists, cognitive psychologists, and psychiatrists, the overwhelming majority of whom concluded in 1973 that homosexuality is not a form of mental illness. It saddens and depresses me that such backward thinking continues to flourish in the US in 2007. But, given the recent opening of the joke in Kentucky referred to as the “Creation Museum,” I should have expected to encounter such flagrant hostility and cruelty on this message thread.
Nevertheless, I remain optimistic. In Planned Parenthood v. Casey, 505 U.S. 833 (1992), Associate Justice Sandra Day O’Connor observed that “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”
I am thankful for the fact that no religious extremists can change the laws to force people like me back into hiding. Soon, the so-called “Don’t Ask, Don’t Tell” policy will come down (Congress is already studying the manner in which other nations have integrated gay men and lesbians into their armed forces). Gay marriage is legal in both name and substance in the Commonwealth of Massachusetts. Gay marriage is legal in substance but not name in Vermont, Connecticut, New Hampshire, New Jersey, Oregon, and at least one other state (in these states, gay marriages are referred to as “civil unions” or (in the case of Oregon) as “domestic partnerships”). Notwithstanding repeated efforts to condemn gay marriage, religious fanatics are losing the fight. This year, they did not even succeed in introducing the so-called “Marriage Protection Amendment” (last year, this proposed measure failed to garner even a majority vote in the Senate during a procedural vote to end debate).
I am presently visiting the UK. Gay marriage is legal in all but name here. Gay marriage is legal in both name and substance in Canada, Germany, Belgium, The Netherlands, Spain, and South Africa. Gay marriage is legal in all but name in the Scandinavian countries (e.g. Denmark, Sweden, Norway, Finland, Iceland, etc.). Gay marriage is also legal in all but name in many South American countries (e.g. jurisdictions within Colombia, Argentina, Brazil, and Venezuela). The history of progress with respect to any social movement shows that a critical mass is ultimately reached, at which point progress continues exponentially.
We have reached that “tipping point,” and gay marriage will soon be legal here in the USA, just as it is in the UK and in Canada.
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