Ruling Makes Gays, at Last, Equal Citizens
June 28, 2003
By Ed Madden, Guest columnist
In March, at the University of South Carolina School of Law, Eldon Wedlock
called the state’s sodomy law a time bomb for gays and lesbians.
Mr. Wedlock and attorneys and activists were addressing a forum sponsored
by the South Carolina Gay and Lesbian Pride Movement and by Lambda Legal, the
national gay and lesbian civil rights organization that recently challenged
sodomy laws in the U.S. Supreme Court. Though the law is rarely enforced,
Wedlock said, “it’s like a ticking time bomb—you never know when it’s
going off in your life if you’re gay.”
On Thursday, that bomb stopped ticking.
The U.S. Supreme Court struck down the sodomy law of Texas, and in doing so
effectively struck down the sodomy laws in the 12 other states that still have
them, including South Carolina.
Sodomy laws are laws that criminalize anal and oral sex. In South Carolina
and eight other states, these laws apply to opposite-sex couples and same-sex
couples. South Carolina’s law made oral and anal sex between consensual
adults—even if consensual, even if in the privacy of a bedroom, even if
between heterosexuals—a felony punishable by imprisonment, fines and listing
on the state’s sex offender registry.
But let’s be honest. The law was rarely enforced in the courts, and when
it was, it was mainly used to criminalize sexual activity between men.
And the real problem was never, really, the way the law was enforced in the
courts. The real problem was the way the law was used in the courts of public
opinion to stigmatize gay and lesbian people—the way it was used, over and
over again, to justify discrimination.
The law was used to deny custody to gay and lesbian parents. S.C. Sen. Mike
Fair proposed a law this year that would prevent gays and lesbians from
adopting children because they are potential felons. That proposal no longer
has any basis.
The law was used to justify employment discrimination. Police could refuse
to hire gays and lesbians. And when the University of South Carolina wanted to
add sexual orientation to its non-discrimination policy last year, state
officials such as Sen. John Hawkins and then-Lt. Gov. Bob Peeler argued that
such simple employment protection would violate the state’s sodomy law.
We are already hearing the predictable jeremiads about how this decision
will destroy America’s moral values. Our own Attorney General Henry McMaster
signed off on one of the most anti-gay documents presented in the case, a
brief written by Alabama’s Attorney General William Pryor, which compared
homosexuality to necrophilia and bestiality.
On Thursday, after the decision was announced, McMaster released a
statement admitting, reluctantly, that our law is no longer enforceable,
though he couldn’t resist a further jab at gay and lesbian citizens by
calling their behavior “inappropriate and detrimental to the state,” even
though most of us are valuable, contributing members of our communities and
In the majority opinion, Justice Anthony Kennedy simply affirmed the
“dignity” of gays and lesbians and the freedom of all Americans to make
choices in their intimate lives without the fear of criminalization and police
stomping into your bedroom.
On Thursday, the Supreme Court took the government out of our bedrooms.
In doing so, it didn’t create some radical cultural change, despite
Justice Antonin Scalia’s inflammatory rhetoric about “culture wars” and
a “so-called homosexual agenda.” The culture has already changed. The
court decision only affirmed it.
Recent polls have found that 88 percent of Americans support workplace
protections for gays and lesbians, and 62 percent favor giving same-sex
couples the same health care benefits as straight couples. Moreover, 82
percent of Americans think that this kind of law should be removed from the
The decision comes only a week before the Fourth of July, when Americans
celebrate their freedoms. It was sometimes difficult to celebrate as a full
and equal citizen when the state considered you a felon.
On Thursday, the Supreme Court ruled the fundamental principles of equal
protection and human dignity apply to gays and lesbians, too.
On Thursday, South Carolinians moved out from under the shadow of a law
that characterizes them as criminals because of who or how they choose to
On Thursday, that time bomb—the sodomy law—stopped ticking. And for
many of us, our lives as full and equal citizens of South Carolina truly
- Mr. Madden is an associate professor at the University of South Carolina
and a volunteer at the South Carolina Gay and Lesbian Community Center in