The Sodomy Laws That Had Kept Us From Living and Loving Openly
Georgia Supreme Court Repeals Sodomy Law
3. A COMMENTARY BY PAUL VARNELL
Ending Sodomy Laws
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1. TEXAS SODOMY ARREST OPENS LEGAL BATTLE FOR GAY ACTIVISTS
By Paul Duggan, Washington Post Staff Writer
HOUSTON – Rarely does a police officer witness violations of Section 21.06 of the Texas criminal code, the section entitled "Homosexual conduct." And almost never is an arrest made under the 119-year-old statute. So what happened recently to John Lawrence and Tyrone Garner, in the supposed privacy of Lawrence’s bedroom, was highly unusual.
The two men were having sex when a Harris County sheriff’s deputy walked into the apartment on another matter, saw what they were doing and hauled them off to jail.
"In all candor, I don’t believe we’ve ever made an arrest before under those circumstances," said Capt. Don McWilliams, a sheriff’s spokesman. But the law is the law, he said. "We can’t give our deputies a list of statutes we think they should enforce and a list of statutes we want them to ignore."
The handcuffing of Lawrence and Garner that night did more than just satisfy the deputy’s obligation to enforce the law. It opened a new legal front in a long campaign by gay activists across the country to do away with such statutes, which they contend are unconstitutional.
Georgia’s highest court issued a ruling Monday that struck down that state’s law against consensual sodomy, but statutes prohibiting the practice remain on the books in Puerto Rico and 19 states, including Maryland and Virginia. Five of the states, including Texas, limit the ban to same-sex couples. Now lawyers have seized on the Houston case as a vehicle to again contest the legitimacy of the Texas statute, which has survived three legal challenges since the early 1980s.
Among similar court challenges in four other states and in Puerto Rico, four are lawsuits, including one in Maryland — where a judge ruled last month that homosexual oral sex is not illegal but refused to declare the sodomy statute unconstitutional. Only two cases, in Minnesota and now Texas, stem from criminal charges. And as gay activists see it, no case more vividly illustrates the threat such laws pose to privacy than the Sept. 17 arrests of Lawrence and Garner.
Answering what turned out to be a bogus report of a man behaving erratically with a gun, Deputy Joseph Quinn arrived at an apartment building east of Houston about 10:30 p.m. and met Roger Nance, 41, who had phoned in the complaint, authorities said.
Nance directed Quinn to apartment No. 833, Lawrence’s apartment. The deputy entered through the unlocked door with his weapon drawn. After finding no one with a gun, Quinn later wrote in his report, he "observed [Lawrence] engaged in deviate sexual conduct, namely, anal sex, with another man." Lawrence, 55, and Garner, 31, spent the rest of the night behind bars before each was let out on $200 bail.
Nance’s false report, for which he served 15 days in jail, stemmed from "a personality dispute" between him and the two men, the sheriff’s department said.
Lawrence and Garner pleaded no contest earlier this month to violating the anti-sodomy statute and were fined $125 each by a justice of the peace. Now the stage is set for what lawyers predict will be a long appeals process, one they hope will end with the state’s highest criminal appeals court invalidating the law as an infringement on privacy as protected by Texas Constitution.
The arrests in some ways delighted gay activists. They said the case not only provides a long-awaited legal platform to challenge the Texas law, but also has a public-awareness benefit, offering facts that underscore their warnings about privacy. Here, they contend, was an instance of government authority literally reaching under a person’s blankets.
"You can’t get more private than a bedroom," said Suzanne B. Goldberg, a lawyer with the Lambda Legal Defense and Education Fund, which is representing the men.
In the other criminal case resulting in a legal challenge, a Minnesota bartender was arrested for engaging in oral sex with a woman in the bar after closing time. Minnesota’s law, which applies to all couples, includes oral sex in the definition of sodomy, as does the Texas law. But in Minnesota, police witnessed the offense after the fact, while viewing a videotape from the bar’s security camera during an unrelated investigation.
The Texas case "should really show the public how invasive these laws can be," said Michael Adams, a lawyer with the American Civil Liberties Union’s National Gay and Lesbian Task Force, which is handling the Minnesota appeal. "It shows that the police really do intrude into the home. And the fact that people have to live in fear of that is terrible."
Goldberg said Lawrence, who works in medical technology, and Garner, a shipping clerk, did not want to be interviewed. McWilliams said Quinn also has declined to comment on the arrests.
As they have in other states, conservative groups voiced support for the Texas law on moral grounds.
Cathie Adams, president of the Eagle Forum’s Texas chapter, said the law banning same-sex sodomy helps maintain a distinction between traditional couples and those "who practice homosexuality," which she called "unnatural and unhealthy."
In addition to citing privacy concerns, activists have complained that such laws often are used as a pretext for discriminating against homosexuals in employment, child custody and other matters.
In one earlier, unsuccessful challenge to the Texas law, for example, an openly lesbian job applicant sued the Dallas Police Department for refusing to hire her. The department said it could not employ her because it presumed she was routinely violating the law in private, by the nature of her homosexuality. The city now has an ordinance barring job discrimination based on sexual orientation.
Wyatt Roberts, chairman of the American Family Association of Texas, said he favors retaining the Texas statute so it can be used as it was in Dallas.
Homosexuality "speaks for a person’s character," Roberts said, and ought to be a legal basis for denying homosexuals child custody and certain jobs. "I think most people in Texas respect a person’s right to privacy," he said, "while at the same time they think homosexuality should be discouraged."
In an earlier challenge to the now-defunct Georgia law, which banned sodomy by all couples, the U.S. Supreme Court upheld the statute in 1986 in a case that focused on the privacy issue. The court said the U.S. Constitution "does not confer a fundamental right upon homosexuals to engage in sodomy."
But the ruling noted that state courts may strike down such laws if they are found to violate privacy protections that are guaranteed or implicit in state constitutions.
That was the basis for the Georgia Supreme Court’s ruling this week, one that gay activists hope will be repeated in the other state courts. In addition to the cases in Texas, Minnesota, Maryland and Puerto Rico, challenges are pending in state courts in Arkansas and Louisiana.
Citing the U.S. Constitution’s equal-protection clause, activists said they also may eventually begin federal court challenges to the Texas, Arkansas, Oklahoma, Kansas and Missouri anti-sodomy laws, which apply to same-sex couples but not heterosexuals.
In a federal lawsuit challenging the Texas law on privacy grounds in the early 1980s, a gay man prevailed in U.S. District Court in Dallas. But a federal appeals court reversed the ruling and upheld the statute in 1985, and a year later the U.S. Supreme Court decided the Georgia case.
Two state court challenges to the law, including the case involving the Dallas police force, were dismissed in 1994 by the Texas Supreme Court, which ruled that the legitimacy of a criminal statute in Texas cannot be contested through a lawsuit, that the challenge must arise from a criminal case.
Activists have waited four years for such a case. Now they have it.
Five states prohibit consensual sodomy among same-sex couples only; 14 states plus Puerto Rico prohibit consensual sodomy among all couples.
States with laws prohibiting consensual sodomy among all couples: Virginia, Maryland*, Idaho, Utah, Arizona, Minnesota*, Louisiana*, Mississippi, Alabama, Florida, South Carolina, North Carolina, Massachusetts, Michigan, Puerto Rico*.
States with laws prohibiting consensual sodomy among same-sex couples only: Oklahoma, Texas*, Kansas, Arkansas*, Missouri.
* States facing legal challenge.
NOTES: In some jurisdictions, oral sex is included in the definition of sodomy. In the most recently decided case, the Georgia Supreme Court struck down Georgia’s anti-sodomy statute on Nov. 23, ruling that it violated privacy rights guaranteed by the state constitution.
The Lambda Legal Defense and Education Fund, and the American Civil Liberties Union’s National Gay and Lesbian Task Force of the American Civil Liberties Union.
Washington Post, November 29, 1998
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2. GEORGIA SUPREME COURT REPEALS SODOMY LAW
Washington, DC-November 23, 1998
The National Gay and Lesbian Task Force today celebrates a 6-1 vote by the Georgia Supreme Court to repeal that state’s sodomy law. The Court ruled that the law violates the Georgia Constitution’s guarantee of a right to privacy.
"Sodomy laws are the linchpin in attacks against the gay, lesbian, bisexual and transgendered community," said Kerry Lobel, executive director of the National Gay and Lesbian Task Force. "They are used to criminalize our behavior and are the basis for discrimination in employment, housing, health care and against families. We applaud the Court for its vote today and also salute the tireless work of Georgia activists who have helped change the climate in the state."
The Georgia law has been the basis of two U.S. Supreme Court cases. The first was the landmark Bowers v. Hardwick in 1986, when it found no constitutional right to privacy for same-gender conduct. And earlier this year, the Court refused to hear the case of attorney Robin Shahar, whose job offer from then-Attorney General Michael Bowers was rescinded after discovering she was planning a commitment ceremony with her partner. Bowers claimed her lesbian relationship violated the Georgia sodomy law, which he himself defended in Bowers v. Hardwick.
"We must be vigilant not only in the passage of civil rights laws, but also in the repeal of sodomy laws," continued Lobel. "Even though they are rarely enforced, they are frequently used as the basis for other forms of discrimination – in the workplace, in the schools, and with the custody of our children."
With the Georgia law now invalid, thirty-one states and the District of Columbia will have no laws forbidding same gender sexual relations. Of the nineteen states that will have sodomy laws in place, six state’s laws apply only to same-gender activity – Kansas, Missouri, Oklahoma, Texas, Arkansas, and Maryland. Thirteen other states have an opposite and same-gender sodomy law – Idaho, Utah, Arizona, Louisiana, Mississippi, Alabama, Florida, South Carolina, North Carolina, Virginia, Massachusetts, Michigan and Minnesota.
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3. A COMMENTARY by Paul Varnell
ENDING SODOMY LAWS
Early in May, Judge Jonathan Heher of the Johannesburg High Court struck down South Africa’s sodomy law on the grounds that it violated the nation’s new constitution barring discrimination on the basis of sexual orientation.
Just a few months earlier Ecuador’s Supreme Court ruled that nation’s sodomy law unconstitutional. And Romania’s new prime minister recently promised to repeal his nation’s sodomy law so it could join the European Union.
In the civilized nations of the world there are few sodomy laws remaining. Mostly they linger in ignorant and savage nations of the third world, where religious faith inhibits rationality, provincialism is praised as patriotism, and fanaticism is proof of piety.
As South Africa’s judge Heher noted with unusual eloquence in his ruling, to penalize a gay or lesbian person "for the expression of his or her sexuality can only be defended from a standpoint which depends on the baneful influences of religious intolerance, ignorance, superstition, bigotry, fear of what is different from or alien to everyday experience and the millstone of history."
Among the developed nations of the world only the United States of America still retains sodomy laws in 20 of its 50 states.
Half of those states are in the heavily Baptist, former slave-owning Confederate South. If the Old South is no longer a "solid south" for racist Democrats, it is, at least, still solid in its legislated homophobia.
The other states are the western strip of Arizona, heavily Mormon Utah and Idaho; the traditionally Catholic states of Massachusetts, Rhode Island, and Maryland; Lutheran dominated Minnesota; and the conservative midwestern cluster of Missouri, Kansas and Oklahoma.
These sodomy laws are seldom enforced. They do not appear to impinge on the lives of most gays and do not seem worrisome to most gay-friendly legislators. That would help explain the remarkable anomaly that three states with gay non-discrimination laws still have sodomy statutes: Minnesota, Massachusetts and Rhode Island. And the only states to have reelected openly gay congressmen by large margins are both states with sodomy laws: Massachusetts and Arizona.
However, anti-gay politicians who, like pro-gay politicians, seem content with non-enforcement of sodomy laws nonetheless fight vigorously to retain them.
This is extremely odd because no one claims that the laws actually reduce the incidence of sodomy. In fact, in arguing before the Montana Supreme Court, the the state’s attorney general tried to make it an argument for retaining the sodomy law that no one had been arrested under it for decades.
But why then retain them?
When George W. Bush was running for governor of Texas he was asked whether he favored retention of Texas’ sodomy law (currently in legal limbo). He said, yes, he thought the state should keep the law, chiefly for its symbolic value.
A symbol of what? A symbol, I think, of social disapproval. A symbol that society regards gay sexuality as defective, inferior and distasteful, tolerates it only contingently, and reserves the theoretical right to prohibit gay sexual expression because it is something we have no natural right to do.
It is a symbol that not only our pleasures, but our deepest relational commitments are shallower and less deserving of respect than those of heterosexuals, and, in short, that we are simply inferior human beings, not to be accorded the full autonomy, dignity or esteem granted to other citizens.
It follows from this that sodomy laws not only express social disapproval and lesser regard for gays, but they also serve the conservative function of reinforcing existing social disapproval and giving it a stamp of legitimacy.
One has to wonder why some bright young reporter did not speak up to ask the young Bush, "Do you mean to suggest, sir, that in your view the superiority of heterosexuality is not sufficiently evident to the public without the support of such legal symbols?
"And, sir, a follow-up question if I may? If the social superiority of heterosexuality is not readily evident to people, then wherein does its non-evident superiority lie?"
But heterosexual reporters probably did not think to ask the question, and gay reporters likely were too far in the closet to feel comfortable asking it.
Bush’s statement, however, suggests he believes it is legitimate to devalue some people in order to bolster some other group of people. This is an odd claim to make in a country dedicated to either liberty or equality, though it may have a certain intelligibility in the Confederate South.
But apart from the devaluing function of sodomy laws, there are also substantive "collateral harms" that sodomy laws create.
They are used to label gays and lesbians as known law-violators and thus create evidence of unfit character for responsible positions such as custodial parent, foster parents, teachers and the like.
Sodomy laws create opportunities for police abuse. They can invite corruption (bribery, extortion), entrapment of gays, and selective law enforcement. It is important to remember, too, that the police absorb their attitudes toward gays from the way the law categorizes them. If the law states that gays are felons, the police will tend to treat known gays with less civility.
Rhode Island prosecutors acknowledged that the state’s sodomy law was useful because it enabled juries to convict on the lesser sodomy charge in cases of alleged sexual assault involving sodomy where consent was uncertain. But that seems to be an argument against sodomy laws. If oral or anal sex is not wrong, then why should people engaging in anal or (chiefly) oral sex where consent is uncertain be convicted of something while those engaging in vaginal sex with uncertain consent not be?
By devaluing gay lives, sodomy laws also subtly encourage and legitimize young male vigilantes who assault, rob or even kill gays. On this ground, one could argue that legislators who support sodomy law are accessories before the fact in gay-bashing incidents.
Despite their offensiveness, sodomy laws remain on the law books in many states because local gay activists have not made repealing them a priority. But for all these reasons, repeal should be a higher priority.
One of the best arguments for the marches on the 50 state capitols in 1999 is that they will provide an occasion to demand the right to sexual privacy and the repeal of state sodomy laws.
Sodomy laws anywhere in this nation are a offensive reminder to all of us that legislators think that our lives are defective and less worthy of respect.
Paul Varnell writes for Chicago’s Windy City Times and other gay newspapers. His e-mail address is PVarnell@AOL.com