Last edited: February 06, 2005

The High Court Finally Gets It Right

Boston Globe, June 29, 2003
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By E.J. Graff

It is a truth universally acknowledged that imagining other people in bed can make you extremely queasy. In the late 19th century, queasiness at others’ wantonly self-indulgent sex lives led to statutes against contraception (sometimes along with playing cards and other vice-inducing items). The post-Reconstruction South saw a proliferation of antimiscegenation laws, enabling police to break into hotels and homes to arrest mixed-race couples for sharing a bedroom or a marriage license—activities which, obviously, endangered all civilization.

In the 1970s, that queasiness was directed at lesbians and gay men. Sodomy laws, which had once had broad and blurry meanings, were rewritten or reinterpreted specifically to ban sex between two men or two women. Under such a law, in 1982, Michael Hardwick of Atlanta was arrested in his own bedroom for doing it with another man. This wasn’t rape or child molestation or prostitution or obscene public display: It was two willing adults behind closed doors. And the Supreme Court recoiled, writing in 1986’s Bowers v. Hardwick that “centuries of moral disapproval” gave Georgia police every right to slap on the cuffs.

Privacy? Ha! That was for regular people. Bowers was so harshly written that it shocked mainstream opiners, then and still—and has been used ever since to strip lesbians and gay men of their children, jobs, and ordinary civil rights.

Every other developed nation and court—from Chile to South Africa, from the European Courts of Human Rights to the UN—has declared that sodomy bans violate fundamental human rights to privacy, dignity, and autonomy. Even in the United States, sodomy laws have been toppling steadily over the past two decades—leaving the 13 American antisodomy states in the illustrious company of such nations as Afghanistan, Myanmar, Syria, and Zimbabwe. Bowers was an international embarrassment—subject to scorn and ridicule by international jurists and human rights groups.

So when, in 1998, Tyron Garner and John Lawrence were arrested in Texas bedroom and hauled off to jail, many observers hoped for a Bowers rematch. This time, the court got it right. “Bowers was not correct when it was decided, and it is not correct today,” wrote Justice Anthony M. Kennedy for the majority.

It’s incredibly rare for the court to overturn itself. But Kennedy lays out the reasons clearly, showing a real grasp of sodomy laws’ damage—intimate, personal, and political. His Lawrence opinion declares, “The petitioners are entitled to respect for their private lives.” The idea that such laws were merely about a particular sex act is profoundly demeaning, “just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.” The Constitution, in other words, protects everyone’s liberty to choose whom and how we love.

Even better, Kennedy’s opinion grasps that sodomy laws harm real people’s lives, whether or not they were ever arrested. Coming out post-divorce, lesbian moms and gay dads have been grilled about their “criminal” sexual practices and denied the right to see their kids. Workers have been fired from their jobs for admitting that they’re (sodomitic) felons. As Kennedy writes, “The stigma this criminal statute imposes is not trivial.” You can say that again. Erasing sodomy laws will help undermine some of the nation’s most offensive and invasive adoption, custody, and employment decisions and laws—perhaps even including the ban on lesbians and gay men serving openly in the military.

Bowers was the lesbian and gay community’s Plessy v. Ferguson, that 19th-century Supreme Court opinion that gave a thumbs-up to racial segregation and shoved blacks to the back of the bus. Lawrence is our Brown v. Board of Education, declaring us full citizens, entitled to all the rights and freedoms held by our siblings, colleagues, and friends. Lawrence is our first national victory, and for many, it’s a tearjerker from recoil to respect—from criminality to citizenship—in just 17 years is so thrilling that it makes this the best gay pride month in history.

In his screeching dissent, Justice Antonin Scalia warns that Lawrence’s logic will lead directly to same-sex marriage. That’s what has just happened in Canada. Here’s the idea: If two people have the right to love and to make love, how can they be denied the fundamental right to marry?

Let’s hope he’s right.

  • E.J. Graff, author of “What Is Marriage For? The Strange Social History of Our Most Intimate Institution,” is a visiting scholar at the Brandeis Women’s Studies Research Center.

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