| 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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