Justice for All
Court should speak up for privacy rights of gay
Monitor, March 28, 2003
Box 1177, Concord, NH 03302-1177
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
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
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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