trancending silence... 2004 Issue

 

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The Supreme Court, Sodomy Laws and the Impact of the LGBT Movement in America

 

Sara Querbes*

Abstract

The Supreme Court ruled in two sodomy cases, 17 years apart, and in the second case they overruled their prior decision. In 2003 they declared state laws which criminalized consensual adult sodomy unconstitutional. Much of the cultural climate was changed in those 17 years which effectively swayed the court's decision. The emerging LGBT movement applied different strategies in order to create a more tolerant country that eventually ruled on the side of privacy right's for everyone. I used research that looked at the LGBT movements social outcomes and how state litigation was used for vast political changes. The two Supreme Court cases, Bowers v. Hardwick (478 U.S. 186 (1986)) and Lawrence v. Texas (02-102 U.S. (2003)) were also utilized in terms of the court's opinions and the reasoning that was used to justify the opposite opinions.

 


The Supreme Court ruled in two sodomy cases, 17 years apart, and in the second case they overruled their prior decision. In 2003 they declared state laws which criminalized consensual adult sodomy unconstitutional. Much of the cultural climate was changed in those 17 years which effectively swayed the court's decision. The emerging LGBT movement applied different strategies in order to create a more tolerant country that eventually ruled on the side of privacy rights for everyone. I used research that looked at the LGBT movements social outcomes and how state litigation was used for vast political changes. The two Supreme Court cases, Bowers v. Hardwick (478 U.S. 186 (1986)) and Lawrence v. Texas (02-102 U.S. (2003)) were also utilized in terms of the courts opinions and the reasoning that was used to justify the opposite opinions.

“Times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve to oppress. As the constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”
-Supreme Court Justice Kennedy, Lawrence v. Texas Majority Opinion [1]

The highest court in our land, The Supreme Court, acts as a definitive arbitrator when dispute over law occurs in the legal system. In their position they have the power to interpret the constitution and also act as a moral and ethical moderator in our changing society. There is no greater legal authority, so when the Supreme Court rules that is how the law will stay unless the court decides to reverse its initial ruling in a later case decision. Because this is a rather infrequent occurrence, there is usually an explanation as to why it happens. Social movements, which seek to change laws, must find ways to expand their rights in a system that is controlled essentially by 9 judges. The most important thing that activists have learned is that through a grassroots movement, one can sway public opinion, which moves the court to reconsider when a cultural shift occurs. The Lesbian, Gay, Bisexual, Transgender (LGBT) movement looked to gain many rights. One of the biggest obstacles in the struggle was getting the Supreme Court to hear cases in which state sodomy laws were being challenged. These laws were a barrier in the LGBT civil rights movement because until they were abolished, citizens who practiced sodomy were considered (whether convicted or otherwise) essentially criminals by the legal profession and perhaps society at large. Laws are important standards in our country for citizens to obey. The stigma that gay people faced could certainly be rooted in the fact that the average American had legal proof that being a sexually active gay person was a criminal offense in some states.

When considering the state of gay rights legislation and activism, I think it is valuable to first consider what kind of movement the LGBT movement is and what it is not. Compared to other groups who may attempt to affect public policy, the LGBT movement is not an interest group because the activism does not stop after the legal battle. The old structure of politics was about individuals fighting political institutions with regard to certain rights in the constitution, whereas LGBT activists attempt to create a new structure of power, one that is more socially and culturally understood. [2] The LGBT movement is not out to only change laws, but to change the very way our society considers many of its fundamental institutions, such as the family. It would seem that the difference between legal success and failure in this movement depends on the overall cultural and political climate.

In order to understand the legal battles in the gay rights movement, I decided to look at the two Supreme Court cases that illustrate the change in political terrain that occured in only seventeen years. In the period between Bowers v. Hardwick in 1986 and Lawrence v. Texas in 2003, the court's opinion changed on sodomy laws. Because the cases are so similar, the change is one of particular interest. What makes the court change its mind about an issue? It can be argued that the cultural climate for gay rights had changed so drastically in seventeen years that what was once an acceptable restriction had became an unconstitutional infringement in a relatively short span of time.

The gay rights movement has long been interested in overturning sodomy laws. These laws are oppressive because they make sexually active gay people criminals. Nearly every LGBT organization has acknowledged the importance of overturning these oppressive and harmful laws. Despite this agenda, early state sodomy laws were overturned with little gay activist struggle. [3] In 1955 the American Law Institute published a guide of US law for states to follow, the Model Penal Code, which did not include sodomy laws on the basis that sodomy was a victimless crime and that medical experts at the time were debating whether homosexuality was genetic; thus it would be unfair to punish homosexuals with the criminal justice system. [4] Many states did not remove these laws; however, because the gay rights movement was still new and small, and there were other pressing concerns, it did not make overturning sodomy laws a priority at the time.

In 1986 the Supreme Court agreed to hear the case Bowers v. Hardwick. Micahael Hardwick was arrested when police came into his home and found him engaging in consensual sex with another man. Hardwick brought a suit to Federal District Court challenging the constitutionality of the Georgia state statute that criminalized consensual adult sodomy; the court agreed with Hardwick tht this statute violated his fundamental rights. The state then took the case to the Court of Appeals to protect and defend their law. The Court of Appeals agreed with the lower court so the state pursued this case all the way to the Supreme Court. The Supreme court disagreed with the lower courts and held that sodomy was not a "fundamental right." [5] Justice White delivered the court‘s majority opinion,in which they ruled that a state's law, which makes adult consensual sodomy in the privacy of one’s home a criminal offense,constitutional. The court came to its conclusion based on many factors including precedents, states law, fundamental rights, and morality. The decision stated there was no provision in the United States Constitution that applies to sodomy, and there is no legal precedent in regard to privacy that resembles gay sodomy in particular. [6] The court, relying heavily on states law, decided that at that point they would not tell states with a long tradition of ruling in favor of anti-sodomy laws that these laws were a contradiction to the constitution. The decision included the fact that the original thirteen states had sodomy written in as a criminal offense and that to “claim that a right to engage in such conduct is ‘deeply rooted in this nation’s history and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious.” [7] In regard to this activity being practiced inside the personal home and thus not being of importance to the state, the Justices disagreed and said that illegal conduct is not protected in the sphere of the home. The court added insult to injury to gay people in the end of the decision when they related the proposition of making sodomy legal to practice in the home to “adultery, incest, and other sexual crimes” and noted they would not want to allow for such acts by ruling in favor of privacy in this case. [8] In a concurring opinion, Chief Justice Burger proclaimed that “condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards” and that “to hold an act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.” [9]

In their dissenting opinion, the other four justices argued vehemently against the majority, but those words held no legal weight. However, the dissenting opinion did function as a guide of what the justices found to be compelling reasons for dissent. In writing this opinion Justice Blackmun took care to show that Georgia’s law as written, applied to heterosexual sodomy as well, and yet it was never used that way. He notes that “Hardwick’s standing may rest in significant part on Georgia’s apparent willingness to enforce against homosexuals a law it seems not to have any desire to enforce against heterosexuals.” [10] These dissenting justices assert that Hardwick’s claim to privacy may have been a harder claim to substantiate than if he had attempted to argue the inequitable use of this law to punish homosexuals at a greater rate. The dissenting justices also drew from past cases to show that “there can be no assumption that today’s majority is ‘right’ and the…others… are ‘wrong’. A way of life that is odd or even erratic but interferes with no rights or interests of others is not to be condemned because it is different.” [11] This opinion also touched upon the existence of bias towards homosexuals in our country, noting that “private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” [12] While this was a hopeful dissent in the world of gay rights, it had no official meaning and was not heard by the dominant culture, which had already ruled in favor of these sodomy laws staying in effect.

The legal outcome of this case was considered by legal scholars as indicative of the changing mood of the U.S. Supreme Court, in that since the early 1980’s federal courts had generally become less willing to expand minority rights. [13] Prior to that time, the court had helped to extend rights to many minorities who were being denied access and equality. The feminist movement of the 1970’s is a particularly good example. The court actively changed the roles of women in our society by recognizing that the legal boundaries that were in existence were outdated and did not reflect the current status of women in the United States. The court relied on “the equality frame, constructing a notion of equality that emphasizes the similarities between men and women, as well as the desirability of affording the same treatment to each.” [14] A long line of cases worked to reduce discrimination in the workplace, and provide women with equal pay and equal access to public and state funded programs, like sports in schools. These cases proved that the feminist movement had not only arrived in the mainstream, but had succeeded in changing public opinion; therefore, the court was forced to reevaluate the role of women in society and confront the inequities in the institutions and laws of our society. This is an example of the course upon which the Supreme Court works. They uphold laws that at one time were seen as necessary for protection and morality, and when society changes enough, they adapt. The Supreme Court then leads the way for legal equality and pushes society to accept these new laws and beliefs as accurate truths. In the justification of their decisions the court sets a precedent and also creates a new language used in public discussions of equality. The feminist struggle in the Supreme Court cases of the 1970’s stands as a sturdy example of what the LGBT movement can hope to become as our culture adapts to the changing roles of the LGBTcommunity within our nation.

Prior to the Bowers case, some states had repealed their sodomy laws, usually from the top down, which in effect meant that lawmakers decided that leaving these statutes on the books was inconsequential and a waste of space. These were very important legal changes, but their cultural impact was negligible. When sodomy laws were stricken from state law, the social stigma surrounding gay individuals did not decline. Also, considering the most widely used successful argument to overturn these statutes was a person’s ‘right to privacy’, opponents later used arguments that build on gay privacy to discriminate against LGBT individuals. [15] The military’s “Don’t Ask, Don’t Tell” is one example. The cultural climate was affected so little by the repeal of these laws that the Supreme Court sided with the states that still had sodomy laws in Bowers v. Hardwick. After that, the gay rights movement took new direction from activists who were energized by the courts relative disregard for their personal rights under the constitution. “The Hardwick decision was a ‘moral shock’ that signified to lesbians and gay men that they were viewed as a separate class of people unworthy of self-respect and rights of citizenship.” [16] This decision, and much of the gay rights movement, has concerned itself with gay men in particular. Because we live in a patriarchal society, gay men have more societal clout than lesbians or transgendered people. While this has an impact on how gay people are treated, it should be noted that LGBT organizations have collectively worked in our society to demand rights. Even those who are not represented by these cases specifically, like lesbians and other members of the queer community, have worked to expand rights. While these cases dealt specifically with men, women changed the cultural landscape and the decisions necessarily include them in their language and application.

The gay rights movement changed after the Bowers defeat. The Supreme Court’s conservative base made federal action nearly pointless for the time being, so gay rights groups mobilized to create large coalitions within states to overturn laws locally. When the president, Congress and the courts do not ideologically align on the issues of LGBT rights, activists are forced to start from the bottom in hopes of changing the entire cultural climate. Activists realized that social movements have the potential to create more than legal change; they could, more importantly, spread new ideas and create new social norms. The key to the gay rights struggle would be working locally to create a base on which to grow, and they worked to emphasize cultural and mobilization outcomes. Because of the large-scale mobilization of activists and a wider audience of the American public, the backlash was inevitable. This is to be considered an important part of the movement. In order to change the minds of the public at large, the movement had to face opposition. It is this opposition that leads activists to become more energized and motivated. Through the public struggle it became impossible to ignore the gay citizens who claimed that they were being deprived of rights other Americans enjoyed.

The National Gay and Lesbian Task Force (NGLTF) decided to shift the direction of the movement from privatizing intimacy to legitimizing it wholeheartedly. The notion of decriminalization was now resting on anti-homophobia work. [17] Essentially, the LGBT political movement “asks us to recognize that what has been traditionally cast as ‘private’ and beyond the realm of political science-namely, sexuality- is imbued with power relationships…” [18] The challenge for the LGBT movement was to make sexuality an issue that society could no longer relegate to the private and draw attention to the inequity under our laws for a whole segment of our population. The NGTLF launched a “Privacy Project” that challenged the dominant public opinions that have marginalized gay lives. “The shift toward discourse on sodomy law reform that celebrated and defended lesbian and gay sexuality rather than concealed and apologized for it” was the basis of this national policy.[19]

Now that state level LGBT organizations were mobilized and arguing on the state levels for equality, an important shift took place. This strategy led to coalition building with other supportive groups, which legitimized the cause. As the cause scored more and more litigation success, there was more publicity. This kind of coalition building is important because it has a widespread impact. When the state legislature validates any gay rights cases, it brings the movement and all of its demands out into the public concern. People are forced to consider the issue at hand. Also, politicians see that this is no longer an issue that will be dealt with in the dark or beyond the scope of public view. For the first time politicians were not ignoring gay voters and even considered this “lavender vote” as a voting block with the potential to change the outcomes of races. [20]

In the Supreme Court case of Lawrence v. Texas in 2003, the Bowers decision was overturned. This court battle began when police entered Lawrence’s apartment and witnessed him engaging in the illegal act of sodomy. The men were arrested and convicted of deviant sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in such acts. The State Court found that the laws under which these men were charged were not unconstitutional, using the Bowers decision as precedent. The Supreme Court agreed to hear the case, and in the Summer of 2003 ruled these laws altogether unconstitutional. In the Lawrence decision the court revised what was previously said seventeen years prior and essentially took back all of the language that was used to criminalize gay sodomy. In a ruling of six to three, the court ruled that it is “within the liberty of persons to choose…without being punished as criminals.” [21] The court revisited the argument of sodomy laws being part of our history and noted that these laws, while in existence since colonial periods were usually on record to prohibit heterosexual couples from sexual activity that was not done for the particular reason of procreation. These laws could not have possibly been intended for homosexuals because they did not exist as a labeled segment of the population until the late 19th century. [22] The court ruled these sodomy laws were not based in ancient roots at all, but rather on majority opinion. They stated flatly “this issue is whether the majority may use the power of the state to enforce these views on the whole society through operation of the criminal law.” [23]

The court’s majority found no legitimate state interest for these laws and even insisted that leaving these laws on the record may create stigma, even if they are not commonly enforced. The court also commented on the far-reaching possible effects these kinds of laws have on a segment of the population. In one of the most vindicating statements of the decision they stated “when homosexual conduct is made criminal by the law of the state, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and private spheres”. They also noted that the laws’ “continuance as precedent demeans the lives of homosexual persons.” [24]

This was an important victory in the course of the gay rights movement because this decision struck down the remaining laws and refuted the idea that gay people are criminals if they are sexually active. This rather small moment in the legal system speaks volumes about the power of public opinion and cultural tides. Without a doubt, the gay visibility since Bowers had an impact. Gay people were no longer hiding or staying in the closet; they were demanding rights and proved to moderate Americans that they were worthy of respect and privacy in their bedrooms.

The highest court in our land took back their words that demeaned a segment of the population, and requested that everyone respect a person’s right to decide what they want to do, with whom, without the legal system being involved.

 

Notes

1. Lawrence v. Texas, 02-102 U.S. (2003): 18. (Return)

2. Rebecca Mae Salokar, “Beyond Gay Rights Litigation,” GLQ: A Journal of Lesbian and Gay Studies 3 (1997): 389. (Return)

3. Mary Bernstein, “Nothing Ventured, Nothing Gained? Conceptualizing Social Movement “Success” in the Lesbian and Gay Movement,” Sociological Perspectives 46 (2003): 360. (Return)

4. Bernstein, 360. (Return)

5. Bowers v. Hardwick, 478 U.S. 186 (1986): 4. (Return)

6. Bowers, 3. (Return)

7. Bowers, 4. (Return)

8. Bowers, 5. (Return)

9. Bowers, 8. (Return)

10. Bowers, 10. (Return)

11. Bowers, 12. (Return)

12. Bowers, 14. (Return)

13. Salokar, 395. (Return)

14. Vicki Lens, “Reading between the Lines: Analyzing the Supreme Court’s Views on Gender Discrimination in Employment, 1971-1982,” Social Service Review 77 (2003): 36. (Return)

15. Bernstein, 363. (Return)

16. Salokar, 398. (Return)

17. Bernstein, 366. (Return)

18. Salokar, 410. (Return)

19. Bernstein, 366. (Return)

20. Salokar, 393. (Return)

21. Lawrence, 6. (Return)

22. Lawrence, 7. (Return)

23. Lawrence, 10. (Return)

24. Lawrence, 14-15. (Return)

 

Bibliography

(The proper format is a hanging indent, but is not demonstrated here because it is difficult to accomplish online.)

Bernstein, Mary. “Nothing Ventured, Nothing Gained? Conceptualizing Social Movement “Success" in the Lesbian and Gay Movement,” Sociological Perspectives 46 (2003) 353-380.

Lens, Vicki. “Reading between the Lines: Analyzing the Supreme Court’s Views on Gender Discrimination in Employment, 1971-1982,” Social Service Review 77 (2003) 25-51.

Salokar, Rebecca Mae. “Beyond Gay Rights Litigation,” GLQ: A Journal of Lesbian And Gay Studies 3 (1997) 385-416.

__________

* Sara Querbes was enrolled in Prof. Vivien Ng's "Classism, Racism, Sexism" course in Spring 2004. (Return)


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