Playing Catch-Up on Gay Sex Ban
Globe, June 29, 2003
Box 2378, Boston, MA 02107
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By Ellen Goodman
And so we bid farewell to the Texas Taliban as they ride
into the legal sunset. The Supreme Court has finally put an end to a long line
of theocrats and theojudges who told consenting adults what they could do to
whom and with which body parts.
The case began when police burst into a Houston apartment
on a false report that two men were fighting. When they found the men making
love instead, they arrested, fined, and jailed the pair.
Thursday, a 6-3 majority ruled that the antisodomy law
violated a homosexual’s right to privacy. In an eloquent opinion that spoke
of dignity and enduring personal bonds, Justice Anthony Kennedy said, “The
state cannot demean their existence or control their destiny by making their
private sexual conduct a crime. ... The liberty protected by the Constitution
allows homosexual persons the right to make this choice.”
The decision was declared a landmark with cheers on one
side and outrage on the other. Justice Antonin Scalia, reading his dissent
aloud, fumed that “The court ... has largely signed on to the so-called
But for all the hullabaloo, this case feels less like
it’s breaking new ground than mopping up some old and tired terrain.
Back in 1960, every state in the union had a law against
sodomy, whether it was between man and man or man and woman. Today only 13
states call it a crime and four of them are targeted solely to gays.
As recently as 1986, an earlier Supreme Court shamefully
upheld antisodomy laws because, in Chief Justice Warren Burger’s words,
homosexuality was “morally reprehensible” conduct, and that was reason
enough to make it illegal. Justice Byron White added that there was “no
connection between family, marriage, or procreation on the one hand and
homosexual activity on the other ...”
But over the last decade, the cutting edge of the gay
rights movement has moved toward matters of family and marriage. While gay
couples in Texas remained partners in crime, gay couples in Vermont became
partners in almost-marriage.
The latest census report lists 600,000 same-sex couples.
The “love that dare not speak its name” now announces commitment
ceremonies on the pages of the newspaper.
So here we are. The Supreme Court has just declared that
homosexuals aren’t outlaws. But the New Jersey and Massachusetts courts are
getting ready to decide if homosexuals can be husband and husband, wife and
wife. Indeed, while our court has just decided gays shouldn’t be locked up,
a Canadian court has declared they can get hitched up. For Gay Pride weekend,
they’re planning to keep the Toronto City Hall open for business.
As gay rights lawyer Evan Wolfson put it, “The gay
movement has moved from merely seeking to be left alone in our homes to
wanting to participate fully in marriage and family under the protection of
In short, and not without irony, a movement that began in
search of sexual freedom is now in pursuit of the bonds of matrimony. Those
who want to get the government out of relationships now want the government to
formalize their relationships.
In Justice Scalia’s scathing dissent, he says
disapprovingly that the court’s argument leaves no justification left “for
denying the benefits of marriage to homosexual couples.” I suspect he’s
He and others clearly regard the gay rights movement as a
threat to marriage, a fear that was behind the Defense of Marriage Act passed
in 1996 to limit marriage to heterosexuals. Gays don’t want to attack
marriage, they want to join it. While many see this as radical, it is, at
heart, profoundly socially conservative.
Same-sex couples now come to the courts and to the public
eye largely as family members who want to adopt children or share pension
benefits. The gay poster children aren’t libertines. They’re two Michaels
who want to register at Crate and Barrel. They’re two mommies with one Baby
This conservatism may well have changed public images as
well as the courts’ attitudes. Today, some 59 percent of college freshman
approve of gay marriage.
The way things are going, homosexuals will win the equal
right to enter into those long discussions that heterosexuals have come to
know and dread. Where is this relationship going? Is this the person I want to
spend my life with? For better or for worse? They’re going to enter the
wonderful world of prenuptial agreements and nappies—and divorce.
With this court decision, gays are escaping the reach of
the Taliban. They are now one step closer to the liberated day when their moms
too will be asking, “So, when are you going to get married?”
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