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We Won! Activists Prepare for Backlash
We Won!
Activists Prepare For Backlash and New Battles After Lawrence vs. Texas Ruling
by Euan Bear
“Today [June 26, 2003] the U.S. Supreme Court closed the door on an era of intolerance and ushered in a new era of respect and equal treatment for gay Americans. This historic civil rights victory recognizes that love, sexuality and family play the same role in gay people’s lives as they do for everyone else.”
– Ruth Harlow, Legal Director at Lambda Legal Defense & Education Fund, lead counsel in Lawrence v. Texas
“Government has just lost its weapon of mass destruction. It can no longer use the existence of sodomy laws to justify discrimination. As of today, all sodomy laws are unconstitutional.”
– Chai Feldblum, a law professor at Georgetown University, co-author of an amicus brief in the Lawrence case.
On June 26, the United States Supreme Court by a 6-3 vote declared unconstitutional state laws criminalizing private consensual sexual behavior among adults. By a narrower 5-4 vote, the Court overturned its infamous 1986 Bowers v. Hardwick ruling, which had declared “facetious” any claim by homosexuals to a right of privacy.
The majority decision, written by Justice Anthony Kennedy, declared the Texas sodomy law unconstitutional – and overturned the Bowers decision – on the grounds that it infringed on the petitioners’ Fourteenth Amendment “liberty” rights under the Due Process clause.
Immediate reaction to the Supreme Court’s landmark ruling in Vermont was muted – as residents of the only state currently giving full legal recognition to same-sex relationships, Vermont’s gay men and lesbians experience less of an impact on their daily lives. Vermont repealed its sodomy law in 1977.
R.U.1.2? Community Center Director Christopher Kaufman said that although an open invitation was extended to the glbtq community to celebrate at the Center’s waterfront headquarters, few people came. “People seemed to feel that they didn’t need to come down because we won.”
He continued, “It is very exciting, very surprising to have this leap forward by a conservative court. It’s a very libertarian decision, based on the right to liberty rather than equal protection.”
Kaufman echoed national speakers’ concerns over a conservative backlash. “We’ve got a long way to go, we can’t be complacent. There’s an awful lot to be done in workplace discrimination, for example. R.U.1.2? will be working on H.366, the bill to make illegal any discrimination on the basis of gender identity and presentation. There’s a lot more to be done at the community level.”
And as the NGLTF noted, he said, “this decision is really the result of 20 years of grassroots organizing.”
Vermonters for Civil Unions attorney Beth Robinson was more impressed with the potential positive impact of the Supreme Court’s decision. “Lawrence v. Texas is huge! It’s huge, not just in terms of results, but in what the Court said and how they said it. They basically acknowledged the humanity of gays and lesbians and the importance of our dignity as people. And they made the connection between gay sexual relationships and love.”
Robinson likewise cautioned the community to prepare for backlash. “These kinds of victories are definitely a good thing, but there is no question in my mind that these events are going to be used to mobilize the right wing. It’s tempting to celebrate and think that the battles are over, but it’s similar to Brown v. Board of Education [declaring ‘separate but equal’ schools by race unconstitutional], where the heavy lifting came after the decision, the litigation, social change and political work.”
At the same time, Robinson added, “Even though we’re looking at a lot of work [to consolidate these gains], I’d rather be in this position of looking at a lot of work because we won.” She characterized Justice Antonin Scalia’s dissent as “a call to arms for the conservatives.”
“The court could have written a narrow decision on the basis of privacy,” she concluded, “but instead, the Court apologized for Bowers. I wept when I read the decision.”
Keith Goslant, official liaison from the lgbtq communities to the Governor’s office, said he was “encouraged” that America is finally recognizing gays and lesbians with full citizenship rights. “I was incredibly pleased to see that the Supreme Court justices got it, and that Justice Kennedy used such strong language in affirming our dignity and humanity. It was incredible to hear.”
Both Goslant and Robinson commented on the similarity of language in the Lawrence decision to that used by Vermont Supreme Court Chief Justice Jeffrey Amestoy in Baker v. State.
Rep. Bill Lippert (D-Hinesburg), executive director of the Samara Foundation (Vermont’s glbtq grant-making foundation), likened the decision to an earthquake. “The significance of this ruling is earthshaking. Its implications are so profound and positive, it will help shift the culture toward openness and acceptance,” he said.
“I am thrilled that the decision was as broad and affirming as it was, and to have such a decision from this conservative court is even more gratifying.” And, Lippert said, the decision should “keep us on high alert for the importance of nominees to the Supreme Court. Future nominees could be very dangerous to our future as a community.”
Joy Around the Country
According to press releases and news reports from around the country, gay men and lesbians celebrated the Lawrence v. Texas ruling.
In San Francisco, “gay men and lesbians poured into the streets today to celebrate a Supreme Court decision striking down or strictly limiting the country’s last remaining sodomy laws in 13 states,” according to The New York Times. Some of them were in tears, weeping with relief and joy.
In Fort Lauderdale, Florida, the publisher of The Harris Guide to gay and lesbian publications worldwide, declared, “This is the most important day in gay rights history since the Stonewall bar raid in 1969. Even if the laws were rarely enforced,” Paul Harris continued, “they still affected the whole tenor of debate and the climate of opinion.” Florida was one of the 13 states with a sodomy law on its books, reported The Express, Fort Lauderdale’s gay and lesbian weekly newspaper.
Comparisons to the landmark Supreme Court segregation ruling Brown v. Board of Education were frequent. The New York Times quoted Kate Kendell, executive director of the National Center for Lesbian Rights: “I feel like I have been walking six inches off the ground. The arsenal used against us, with sodomy laws being the foremost weapon, has been neutralized.”
Fallout Begins with Free Speech Challenge
In Topeka, Kansas, Topeka and Shawnee County Public Library managers ordered an employee to stop talking about the historic ruling at work. Bonnie Cuevas is the mother of a gay son and an activist member of PFLAG. The ACLU has sent a letter requesting that the Library reconsider its order.
Following brief congratulatory conversations and phone calls for Cuevas, two library managers told her she was prohibited from ever speaking about Lawrence v. Texas at work again. The managers told Cuevas that a co-worker had complained that Cuevas was creating a “hostile work environment.”
Since that meeting, Cuevas has complied with the restriction on her speech. Although some of her co-workers continue to discuss the Lawrence decision, they have not been reprimanded.
“It’s against the law for a public employer to prevent employees from talking about pressing social issues at work if it’s not keeping them or their coworkers from doing their jobs,” said Ken Choe, a staff attorney with the ACLU’s Lesbian and Gay Rights Project.
Romeo & Juliet Law Holds No Romance
Perhaps the most dramatic immediate impact of the ruling was the intervention of the Supreme Court in the case of Matthew Limon, an 18-year-old Kansas man sentenced to 17 years in prison for having sex with a 14-year-old boy. Both were residents at a program for developmentally disabled youth. If Limon had been convicted of having sex with a girl of the same age, his maximum sentence would have been 15 months.
The Supreme Court vacated the sentence and ordered the case to be reviewed by the Kansas appeals court. The case fell under Kansas’s so-called “Romeo and Juliet” law, which makes sexual relations with a minor a lesser crime if both people are teens, but only if they are of opposite genders.
In addition to the Kansas law, sexual conduct laws that treat young gay people differently from heterosexuals remain on the books in Texas, Alabama, California, Virginia, and Georgia, said James Esseks, Litigation Director of the ACLU’s Lesbian and Gay Rights Project. The Lawrence decision calls all such laws into question.
Florida Adoption Ban Relies on Overturned Ruling
Meanwhile, the American Civil Liberties Union has urged the appeals court considering the fate of Florida’s ban on adoption by gay parents to heed the Supreme Court’s ruling in Lawrence v. Texas.
“The Supreme Court has now made it crystal clear that laws that discriminate against gay people will no longer fly,” said Matt Coles, Director of the ACLU’s Lesbian and Gay Rights Project. “By placing foster children with gay parents, the state already acknowledges that gay people make good parents. The anti-gay adoption law is discrimination pure and simple. The state has no legitimate basis for excluding such a large number of potential parents from adopting and has lost its only remaining argument for doing so.”
In Lawrence the court explicitly overturned its 1986 decision in Bowers v. Hardwick, which Florida relied on to justify the ban on gay adoptions.
The ACLU case involves three families, including Steven Lofton and his partner Roger Croteau, whose case was highlighted nationally by Rosie O’Donnell. The law that excludes gay people from adopting was passed by the state legislature in 1977, in the midst of Anita Bryant’s anti-gay crusade.
Don’t Ask, Don’t Tell Challenged
Another case with the potential to have a major impact involves Lieutenant Colonel Steve Loomis – a decorated Vietnam combat veteran and recipient of the Purple Heart – and the military’s so-called “Don’t Ask, Don’t Tell” policy. Loomis has filed suit to reverse his 1997 discharge from the US Army, based in part on the Lawrence v. Texas ruling.
The Army discharged Loomis for being gay just eight days prior to his 20-year retirement date, according to a report from US Newswire (Loomis served part of his time in the reserves, which accrues toward retirement at a different rate than active duty). As a result, Loomis was deprived of his retirement pension, worth an estimated one million dollars.
The Army based its discharge on a videotape seized during an arson investigation. Following a fire at Loomis’ home in 1996, civilian investigators found the videotape, which recorded Loomis in private adult consensual sexual conduct with another male, and handed it over to Army officials.
The Supreme Court has not ruled on the constitutionality of the military’s sodomy statute or “Don’t Ask, Don’t Tell.” Four appellate courts have upheld “Don’t Ask, Don’t Tell” to date.
Opposition in Gear
Conservatives, of course, wasted no time in criticizing the Supreme Court’s ruling, led by the 21-page dissent of Justice Antonin Scalia (joined by Justice Clarence Thomas and Chief Justice William Rehnquist), who accused his majority-opinion colleagues of having “taken sides in the culture war” and “signed on to the so-called homosexual agenda.” Scalia further indicated that the ruling could pave the way for gay marriage. Justice Thomas clarified that he thought the law was wrong based on equal protection, but that it should be up to the state legislature to change the law.
Senate Majority Leader Bill Frist, R-Tenn., followed soon after, declaring on ABC’s This Week, that the ruling could lead to increased prostitution and drug dealing. He endorsed an amendment to the U.S. Constitution to ban legal marriage for gay and lesbian couples in long-term, committed relationships. The amendment has in fact been introduced, although it has seen no action.
The National Stonewall Democrats announced that it will not “endorse, support, or contribute to Democratic Members of Congress who co-sponsor” the anti-gay marriage amendment. As of mid-July, five Democrats and 39 Republicans have signed on.
And televangelist Pat Robertson called for prayers from his flock to ask God to replace three of the majority-opinion justices. In a letter on his Christian Broadcasting Network website and an op-ed piece published last month in the Los Angeles Times, he identified which three justices should be replaced by naming supposed health problems (cancer and a ‘heart condition’) and because of advanced age. Robertson said his call for prayers was for God to place in the three justices’ minds that they should retire, though the inference that perhaps God would ‘call them home’ was not lost on observers.
To read the opinion and the dissent, go to: www.supremecourtus.gov/opinions. Click on Latest Slip Opinions, look for Lawrence v. Texas.
| Quotes from the Majority Opinion Written by Justice Anthony Kennedy “[T]his Court’s obligation is to define the liberty of all, not to mandate its own moral code.” “The stigma the Texas criminal statute imposes, moreover, is not trivial. Although the offense is but a minor misdemeanor, it remains a criminal offense with all that imports for the dignity of the persons charged, including notation of convictions on their records and on job application forms, and registration as sex offenders under state law.” “In his dissenting opinion in Bowers JUSTICE STEVENS concluded that (1) the fact a State’s governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, and (2) individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of “liberty” protected by due process. That analysis should have controlled Bowers, and it controls here. Bowers was not correct when it was decided, is not correct today, and is hereby overruled.” “[This case] does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners’ right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention. The Texas statute furthers no legitimate state interest which can justify its intrusion into the individual’s personal and private life.” “Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.” “The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.” “When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.” “When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” “[The Bowers ruling’s] continuance as precedent demeans the lives of homosexual persons.” From the Dissent Written by Justice Antonin Scalia “What a massive disruption of the current social order, therefore, the overruling of Bowers entails. Not so the overruling of Roe, which would simply have restored the regime that existed for centuries before 1973, in which the permissibility of and restrictions upon abortion were determined legislatively State-by-State.” “The Fourteenth Amendment <I>expressly allows States to deprive their citizens of ‘liberty,’ so long as ‘due process of law’ is provided...” “[H]omosexual sodomy is not a right ‘deeply rooted in our Nation’s history and tradition.’” “This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. JUSTICE O’CONNOR seeks to preserve them by the conclusory statement that ‘preserving the traditional institution of marriage’ is a legitimate state interest. ... But ‘preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples.” “Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.” “[T]he Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.” “Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts – or, for that matter, display any moral disapprobation of them – than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new ‘constitutional right’ by a Court that is impatient of democratic change.” |