Last edited: January 01, 2005

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 our state.

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 books.

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 love.

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 began.

  • 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 Columbia.

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