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Why the Supreme Court Decision Striking Down Sodomy Laws Is So Important
Last month, the U.S. Supreme Court struck down a Texas law that banned most kinds of sexual intimacy, but only for same-sex couples. The case, Lawrence v. Texas, is the single most significant case the LGBT community is ever likely to see.
Lawrence is really that big.
To begin with, there are the 13 states that had "sodomy" laws. Alabama, Mississippi, Utah, Virginia…these were states that were not going to get rid of those laws anytime soon. Lawrence wiped them all away in one fell swoop.
But the real importance of Lawrence is not so much in what it got rid of as in what it gave us. It gave us the constitutional right to form intimate relationships and to sexual expression. For that, Lawrence changes everything.
Since the 1970's, it's been clear that the Constitution protects the right of heterosexuals to "autonomy." That includes essential relationships with others – everything from having and raising children, to forming lasting emotional bonds with other adults, to sex. Having that constitutional right meant that courts were very reluctant to allow government to control these relationships.
The Supreme Court's 1986 decision in Bowers v. Hardwick gave a powerful boost to those who said gay people did not share the constitutional right to autonomy. Georgia's law banning oral and anal sex applied to everyone, but the Court turned it into a case about whether there is a constitutional right to "homosexual sodomy." In deciding that there wasn't, the Court said it was "at best, facetious" to argue that the intimate lives of lesbians and gay men were protected by the Constitution.
Bowers quickly became the leading justification for every kind of discrimination against gay people. As a federal court put it in the 80's, how could there be anything wrong with discrimination against a class "defined" by conduct that could be made a crime? And the impact of Bowers was hardly limited to courts. Proposals for laws against job discrimination, hate crimes, and to recognize domestic partnerships were all met with the often effective argument that the relationships at the core of our lives were wrong because they were (or could be made) a crime.
In Lawrence the Court was well aware of the damage that Bowers had done, and it set about to undo as much of it as it could. In Lawrence the Court did something unheard of; it admitted it had been wrong. "Bowers was not correct when it was decided," the Court said, "and it is not correct today." With that one sentence, the Court undermined the basis of every decision and every policy that had been based on Bowers.
Even more remarkable was the Court's characterization of the constitutional right that Texas had violated. While the Texas law regulated an act of sexual expression, the Court said, its effect was to control a personal relationship that people have the right to enter "and still retain their dignity as free persons." To explain, the Court reached back to an earlier decision in which it had reaffirmed a woman's right to choose, Planned Parenthood v. Casey. The Casey decision said that the Constitution protects personal decisions about marriage, having or not having and raising children, and basic family relationships. Summing up, the Court in Casey wrote:
At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.
The Lawrence decision quotes this passage from Casey, and then adds:
Persons in homosexual relationships may seek autonomy for these purposes, just as heterosexual persons do.
The right to decide what is and is not important in life and to build the relationships we choose, that right, the Court says, is ours as much as anyone's.
Think about it. Discrimination against gay people is based on the notion that our relationships are, at worst, just plain wrong, and at best, not as worthy as those of heterosexuals. That idea unites all the cases that prefer heterosexuals in custody, visitation and adoption. It is the unabashed argument against acknowledging same-sex relationships. And although some employment discrimination is more subtle, it too is based on disapproval of our sexuality and relationships.
Ultimately, sex and relationships are what lies at the heart of all discrimination against us because ultimately, it is our relationships and our sexuality that distinguish us from heterosexuals.
That is why the Lawrence decision speaks to every issue in the fight for equality and decent treatment; because the relationships which are at the heart of our lives and at the heart of discrimination are now protected – protected in the same way heterosexual relationships are protected – by the Constitution.
This doesn't mean that courts will now strike down every form of government-sanctioned discrimination, but it does mean that we are in a much stronger position in court. For example, in the past, Alabama said it denies custody to gay people because of its sodomy law, and because gay relationships are criminal. It can't do that anymore, so it likely will now say that it does so for the good of the children, or something along those lines.
But after Lawrence, it will no longer do for Alabama to assume that it is better for children to be raised by a heterosexual couple. Since our relationships are protected by the Constitution, the state will need to have an explanation for why it treats them differently. And states should not be allowed to get by with words alone. If, to pick another example, Florida says heterosexual couples provide more stable homes, it will need to be able to show it.
In most cases, this will be all we need. For virtually all of the "explanations" for preferring heterosexuals over gay people are based on beliefs that have nothing to do with reality. With a little time and a little patience, Lawrence will allow us to insist that policy be based on evidence, not instinct.
The Lesbian and Gay Rights Project has already filed a supplemental brief in our challenge to Florida's ban on adoption by gay people, explaining the impact of the Lawrence decision. In the next few weeks we'll be filing in every case we have that is awaiting decision, from domestic partnership cases in Alaska and Montana, to a custody case in North Dakota, to the challenge to Nebraska's ban on recognizing gay relationships in any form.
We also think Lawrence will help us help high school students all across America in their remarkable struggles to get safe places for kids to meet to talk. It will help us keep schools from preaching to students that being gay is wrong, from forcing students to come out to their parents, or from keeping them from being out to their friends.
Will Lawrence help bring down "don't ask, don't tell" and bans on same-sex marriage? In time, yes, although how much time will depend. Lawrence largely erodes the underpinning of both. If both gay and straight sexuality is constitutionally protected, and if moral disapproval is not a legitimate reason for treating us differently -- and Lawrence says emphatically that it is not -- it is hard to see any rationale for the military policy. Defenders of heterosexual marriage will insist they are defending not a moral precept, but a tradition that goes back thousands of years. But that isn't much of a defense for keeping all the legal consequences society has attached to marriage exclusive to heterosexuals.
Some cases will put these points into much sharper relief than others, and some courts will be more open to changing the way they think about gay relationships than others. We could lose some cases if we aren't smart about it. A series of losses after Lawrence would certainly slow down our momentum, and give our opponents something to work with. But even some bad cases won't be able to take away what Lawrence has given us: a constitutional right to be who we are.
And courts are not the only place where having this right is important. The Supreme Court's role as a guardian of constitutional right and wrong has taken a beating in the last couple of years. But it remains the closest thing we have to an institutional conscience in our system. And if anything, the decisions of the past few months may have added a little luster to the Court's armor, made it seem again just a bit above the fray. The level of understanding and respect reflected in Lawrence – the Court attacked Bowers because it "demeans" our lives – is an important statement in itself.
For if Bowers v. Hardwick told the nation not just that sodomy laws were constitutional, but that gay people were outlaws whose lives had "no connection" to family, Lawrence says not just that sodomy laws are unconstitutional, but that we are a part of the American family. Bowers was a political statement powerful far beyond its context; Lawrence should be too.
After Lawrence, there really is no excuse for refusing to protect gay people from discrimination, no excuse for refusing to protect gay students, no excuse for disrespecting gay parents, no excuse for disrespecting gay relationships. Lawrence gives us a political argument for all the things we want to change: since the Constitution protects our relationships, the government has a moral duty to protect us when we are attacked because of them.
Lawrence doesn't establish full equality, but no single Court decision ever does. What it does give us is both the political and legal basis for full equality, with all the moral authority the Court can muster.
On the day the decision came down, the ACLU launched a special media/web mobilization campaign - Get Busy, Get Equal - to take Lawrence to the political arena. The purpose of the campaign is to help people throughout the country to seize this moment by working to get LGBT people included in civil rights and safe schools laws and policies and to get equal treatment for same-sex couples.
The campaign's centerpiece is a resource bank on the web that provides people with the tools they need to effect change. Check it out.
The site includes simple things anyone can do in a minute or two, like sending an e-mail to your representatives in Congress asking them to oppose the Federal Marriage Amendment, which would specify that marriage can only be a union between a man and a woman. (Senate Majority Leader Bill Frist endorsed this proposed amendment just three days after Lawrence came down and we've been working hard to keep it from passing in the Senate). It also has virtually every resource you need for more ambitious organizing.
If your city already has a gay nondiscrimination ordinance, demand domestic partner benefits. If your employer does not extend the same benefits to you and your partner that it does to married employees, work with your colleagues to change that. If the school from which you've graduated continues to mistreat their LGBT students, do something about it. And if you happen to live in LGBT nirvana, think "home town." You've escaped, but can you help out those who haven’t?
We all owe an enormous debt of gratitude to the countless lawyers, academics and activists who helped bring this decision about. The ACLU is very proud of its work in helping to get rid of sodomy laws. The ACLU brought its first challenge to a sodomy law in 1963. We represented Michael Hardwick in Bowers v. Hardwick. We helped to strike down or repeal sodomy laws in California, Georgia, Kentucky, Maryland, Minnesota, Montana, Nevada, New York, Tennessee.....you get the picture. Along with Lambda Legal, we’ve worked for eight years to get a same-sex intimacy case to the Supreme Court. (And forgive us if we can't help but mention that the ACLU’s friend-of-the-Court brief was referred to by the Supreme Court in Lawrence once at the oral argument and twice in the decision -- a single mention of any brief is unusual enough -- but three times is a hat trick!).
But truly, it has been the collective efforts of activists all over the country that made the difference. The most important difference between Bowers v. Hardwick and Lawrence v. Texas is the way society changed in the 17 years between them. When Bowers v. Hardwick was decided it was still possible for some intelligent, thoughtful people to think that lesbians and gay men were emotionally flawed creatures who were condemned to lead sad, empty lives. Today, only the willfully blind can think that. Today, any one who pays attention to the world understands that gay people know the same range of emotion, of possibility and frustration that everyone else knows. They know gay people are just people.
We all did that. All of us who put blood, sweat, tears, time and money into making America understand. From the splashiest court case to the most prosaic domestic partnership policy, from the most dramatic television show to the most matter-of-fact conversation over dinner, changing the way Americans think is what made the difference.
There was nothing inevitable about Lawrence. It could have taken 50 years to undo Bowers v. Hardwick. There is nothing inevitable about full equality. It may come with breathtaking speed, or it may take a lifetime or two. What is certain is that just as you helped bring us here, it is you and others like you whom the movement will need to get us there.
So thanks. And stay with it. After this, who knows what we can do and when. Here at the ACLU, we've already got some ideas...
Source: http://www.aclu.org/LesbianGayRights/LesbianGayRightsMain.cfm
I thought this was an interesting observation on the importance of the Lawrence decision. I also think those now proposing anti-gay laws and an amendment to the US Constitution are well aware of the implications as well.
Discuss.
