Last edited: February 06, 2005

Justice for All

Court should speak up for privacy rights of gay people.

Concord Monitor, March 28, 2003
Box 1177, Concord, NH 03302-1177
Fax: 603-224-8120

 As recently as 1986 Americans who are gay could not trust the U.S. Supreme Court to safeguard their liberty. Reviewing a Georgia ban on sodomy that year, a 5-4 majority made clear that in the eyes of the law, homosexuals remained second-class citizens. This week the court heard arguments in a Texas case that revisits the 1986 ruling. The justices should seize the chance to make amends.

What’s at stake goes far beyond sex and what the Texas “homosexual conduct” statute classifies as deviant behavior. The real issue is whether all Americans are equal under the law.

The 1986 case, known as Bowers vs. Hardwick, was a low point for the court. The majority made no bones about its contempt for gay people, citing without regret the long-held beliefs of many that homosexuality is immoral. The prevailing justices also construed the case in the narrowest possible way: The Constitution doesn’t explicitly permit sexual conduct between same-sex partners, the majority said, so a law against sodomy must be acceptable.

Such reprehensible reasoning did not go unchallenged by other members of the court. Justices Harry Blackmun and John Paul Stevens wrote impassioned dissents whose arguments deserve to make it into the majority opinion when the current case is decided.

Three justices remain from the 1986 court. William Rehnquist, the current chief justice, and Sandra Day O’Connor sided with the majority. The other holdover, Stevens, was particularly eloquent in his dissent: “Although the meaning of the principle that ‘all men are created equal’ is not always clear,” Stevens wrote, “it surely must mean that every free citizen has the same interest in ‘liberty’ that the members of the majority share. ... The homosexual and the heterosexual have the same interest in deciding how he will live his own life. ... State intrusion into the private conduct of either is equally burdensome.”

It is a basic expectation of most consenting adults in this country that what they do in the privacy of their bedrooms is their business and not that of the government. In Texas, however, as in other states with laws against sodomy, there can be no such expectation for anyone who is gay.

The problem is compounded because the Texas law takes behavior that is permissible for a heterosexual couple and labels it criminal when engaged in by homosexuals. This uneven treatment perpetuates the harmful stereotype that gay people are deviant and invites discrimination in other parts of life as well. If the state can deny gay people the privacy rights enjoyed by other citizens, aren’t other rights—be it to employment opportunity, housing, you name it—also at risk?

Overturning the Texas law, it should be noted, would bring the high court into step with many of the legislatures around the country. Some 40 years ago, every state had a law forbidding sodomy. Today, 37 states, New Hampshire included, have done away with such nonsense.

More important, overturning the ruling in the Bowers vs. Hardwick case would bring the Supreme Court into step with its own, otherwise admirable record of protecting the rights of all Americans. There is no excuse for leaving any class of citizens outside the protection of the Constitution. The justices should act swiftly to remedy this intolerable exception.

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