Last edited: November 23, 2003

ACLU Takes First-Ever Gay Rights Case to Puerto Rico Supreme Court, Citing Cultural Emphasis on Privacy

American Civil Liberties Union
For Immediate Release: Friday, August 11, 2000

Contact: Eric Ferrero, ACLU (212) 549-2568

SAN JUAN, PUERTO RICO — For the first time in its 101-year history, the Puerto Rico Supreme Court today began considering whether gay men and lesbians are treated equally under the law. Citing Puerto Rico’s long-standing cultural commitment to personal privacy and a tradition of avoiding the imposition of Anglo-Saxon values, the American Civil Liberties Union today asked the court to hear its challenge to the commonwealth’s sodomy law.

Just weeks ago, the Puerto Rico Supreme Court ruled in favor of a transgendered woman who sought to change the gender on her birth certificate - but the court has never before weighed in on the rights of lesbians and gay men, which the ACLU contends the sodomy statute violates.

"Like all sodomy laws, this statute is unconstitutional," said Michael Adams, Associate Director of the ACLU Lesbian and Gay Rights Project. "While gay issues are new to this Supreme Court, we are hopeful that Puerto Rico’s long-standing cultural commitment to individual privacy will prevail."

A lower court dismissed the ACLU’s challenge to the sodomy law earlier this year. Under the current law, any private, consensual sexual contact between people of the same sex — and anal sex between any adults — is a felony, punishable by up to $1,000 or 10 years in prison.

Today’s appeal reminded the Puerto Rico Supreme Court that the Commonwealth’s Constitution goes much further than the U.S. Constitution in explicitly protecting citizens’ privacy. The lower court’s dismissal of the case relied on Bowers v. Hardwick, a misguided 1986 U.S. Supreme Court decision that sodomy laws are not an invasion of privacy.

That ruling, the ACLU told the court, "was decided based on the U.S. Supreme Court’s analysis of Anglo-Saxon history." By contrast, Puerto Rico intentionally made a "societal decision" to recognize individuals’ privacy rights in its own Constitution, the ACLU’s appeal said.

"There is a myth in white communities — particularly among white gay people — that all Spanish-speaking cultures are too homophobic to treat people fairly," said Janice Gutierrez-Lacourt, Executive Director of the ACLU of Puerto Rico. "Many people here in Puerto Rico disapprove of lesbians and gay men. But Puerto Ricans place an extraordinary value on personal privacy — which this sodomy law directly contradicts."

Common cultural myths and stereotypes often prevent national lesbian, gay, bisexual and transgender organizations from adequately meeting the needs of communities of color, Adams said.

"All of us, as a national movement, are not working with communities of color the way we ought to be — and we are not even beginning to address the needs of our communities in Puerto Rico," he explained. "This case is a very small step on the part of the ACLU to help close that gap."

Meanwhile, Gutierrez-Lacourt said the sodomy law "is a clear danger to every lesbian and gay man in Puerto Rico." Last year, a Puerto Rico appellate court made that clear in a seemingly unrelated case, she said. In a domestic violence case involving a gay male couple, the court ruled that Puerto Rico’s law on domestic violence did not apply, since the sodomy statute "makes homosexual conduct a crime."

In another example cited by the ACLU, the sodomy statute was used to threaten Rev. Margarita Sanchez while she was testifying about an anti-gay bill before the Puerto Rico legislature. That threat was followed by an announcement from the Puerto Rico Department of Justice that officials intended to enforce the sodomy law if police brought them evidence of violations. Rev. Sanchez is now the lead plaintiff in the ACLU’s challenge to Puerto Rico’s sodomy law.

Puerto Rico’s sodomy law illustrates the potential danger of other such laws nationwide, Adams said. "Many people — gay and straight — have this idea that sodomy laws are just really old legal codes that exist in name only. In fact, we regularly work with people who have been arrested or threatened with arrest, as well as people who have lost their jobs and their children because they are technically felons in states with sodomy laws," Adams said.

Earlier this month, the second-largest conservative group in the nation used a sodomy law to try to intimidate and silence an openly-gay Congressman who spoke at the Republican National Convention. The American Family Association called for the arrest of Rep. Jim Kolbe (R-AZ), because his home state has a sodomy law.

In addition to Puerto Rico, 18 states have sodomy laws. The specific natures of the laws vary, as do punishments. Puerto Rico’s sodomy law violates the commonwealth and federal constitutions by criminalizing private, consensual, non-commercial intimacy between adults, the ACLU lawsuit contends. This ACLU argument has proven successful in court challenges to sodomy laws in several states in recent years, including those in Maryland, Georgia, Montana, Tennessee and Kentucky. Earlier this summer, the ACLU filed a class-action lawsuit challenging Minnesota’s sodomy law, which criminalizes private, consensual, non-commercial intimacy for heterosexual and gay adults.

The ACLU lawsuit challenging Puerto Rico’s sodomy law was filed in 1998 on behalf of Rev. Sanchez and five other lesbian and gay Puerto Ricans. The ACLU also appeared as a plaintiff in the lawsuit, on behalf of its grassroots members in Puerto Rico who are lesbian, gay and straight.

The case is Sanchez, et al. v. Commonwealth of Puerto Rico. In addition to Adams, Charles Hey Maestre and Nora Vargas Acosta, both of San Juan, are attorneys in the case.

Eric Ferrero, Public Education Director
The American Civil Liberties Union
Lesbian and Gay Rights Project/AIDS Project
125 Broad St., 18th Floor
New York, NY 10004-2400
Tel: 212-549-2568; Fax: 212-549-2650

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