Last edited: February 14, 2005

Activists Hope to Reverse Anti-Gay Ruling

Detroit News, July 30, 2001
615 W. Lafayette, Detroit, MI 48226
Fax: 313-222-6417

By Deb Price

For the first decade after the U.S. Supreme Court’s devastatingly anti-gay Bowers v. Hardwick ruling in 1986, gay-rights attorneys pretty much felt like they were tiptoeing around in the legal equivalent of a house of horrors:

Every time they dared open a door — whether in trying to help a lesbian mom regain custody or a gay applicant rejected as a police officer — they feared the ferocious monster that’s come to be known simply as Hardwick would pop out, as state and federal judges frequently cited that anti-sodomy ruling as an excuse for a wide range of anti-gay decisions.

This summer marks the 15th anniversary of the Hardwick ruling, in which Justice Byron White contemptuously branded as "facetious" the argument that gay Americans have a constitutional right to privacy. While the Hardwick legal precedent is hardly dead, it’s a shadow of its former self, not too far from being taken off the homophobic respirator that enables it to live on to be used for occasional outbursts by mean-spirited judges.

And thankfully, as is often true of monsters’ victims, the gay community has transformed much of the searing pain felt in the years immediately after the ruling into powerful, self-protective weapons.

"While on the one hand, it would have been great to have gotten all the sodomy laws in the country struck down by the U.S. Supreme Court, this has forced us to get more organized, to go into state courts to educate a lot of judges," observes Arthur Leonard, author of the superlative Sexuality and the Law.

"It forced us to become experts on state constitutional law — with excellent results in that we knocked down a lot of sodomy laws in state courts in the years since Hardwick," says Leonard, praising several state legislatures as well for dumping sodomy laws.

When Hardwick was handed down, 24 states, the District of Columbia and the military still had anti-sodomy laws, most of them targeting any couple engaging in oral or anal sex. Now only 17 states and the military still criminalize sodomy; in five states, those laws apply only to gay sex. And that overall number is dwindling fast: In Minnesota, a 30-day appeal period of a favorable ruling ends soon, and an earlier victory in Arkansas is likely to be affirmed. Legal experts debate the viability of sodomy laws in Michigan, Montana and Missouri.

That leaves a dozen backward states, mostly in the South. Challenges are pending in Texas and Arkansas. A few states will likely cling to sodomy laws for years. Ultimately, gay-rights lawyers hope to persuade the Supreme Court to reverse Hardwick. Until then, the existence of sodomy laws anywhere stigmatizes gay Americans everywhere.

This summer is also a time to celebrate the fifth birthday of Romer v. Evans. In that landmark decision, the Supreme Court wrapped gay Americans in the Constitution’s protective embrace. While the remarkable ruling’s reach is still unclear, it helped deaden Hardwick’s sting.

"The main value of Romer has been atmospheric. It shifted the judicial climate," notes attorney Shannon Minter of the National Center for Lesbian Rights. "In Romer, you had the Supreme Court without blanching referring to gay people as part of the citizenry entitled to equal treatment and respect."

Romer opened a promising path of gay-rights litigation, one relying on the Constitution’s equal protection promises. The ruling’s pricelessness was underscored when the Vermont Supreme Court mentioned Romer when prodding the state legislature to give coupled gay Vermonters all the state rights and responsibilities of marriage.

"Hardwick and Romer are emblematic of the schizophrenia in this country right now," observes attorney Steve Scarborough of the Lambda Legal Defense and Education Fund. "...Something is going to have to give. I predict Hardwick is going to fall."

Tiptoeing far less these days, gay-rights attorneys are rightly filled with hope about the years ahead.

  • Deb Price’s column is published on Monday. She be contacted at (202) 662-7370 or Write letters to

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