Equal Rights for Gays
New
York Times, December 8, 2002
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The Supreme Court agreed last week to hear a challenge to Texas’
"Homosexual Conduct" law, which makes gay sex illegal, even when it
is consensual and done in private. The case could be the vehicle for the
Supreme Court to overturn one of the worst rulings in its history, its 1986
decision in Bowers v. Hardwick, which upheld the criminal convictions of two
Georgia men for having gay sex in a private home. The court should remove the
blot of Bowers from its record and extend the full rights of citizenship to
gay Americans.
The two men who brought the Texas case were arrested in the home of one of
them by police officers who were responding to a false report of a weapons
disturbance. The men were held in police custody for more than a day and were
fined. Having been convicted of what Texas law defines as a crime of
"moral turpitude," they can now be disqualified or restricted in
practicing dozens of professions that range from doctor to bus driver, and in
several states they are considered sex offenders and would have to register
with the police.
The men’s convictions violate the Constitution’s guarantee of equal
protection. Thirteen states have laws against sodomy, but Texas is one of just
four whose law applies only to gay sex. It punishes gays as a class by
criminalizing an act that is central to who they are—in the same way, as the
Supreme Court noted in an entirely different context, that a tax on wearing a
yarmulke would be a tax on Jews.
A decade after Bowers, the Supreme Court struck down an antigay Colorado
constitutional amendment on equal protection grounds. The court ruled that the
state amendment, which banned localities from prohibiting discrimination
against gays, violated the equal protection clause because it classified gays
"not to further a proper legislative end but to make them unequal to
everyone else." The same analysis applies to the Texas sodomy law. It
advances no legitimate state interest—Texas defends it simply by declaring
that gay sex is "immoral." And like the Colorado law, it makes gay
people "unequal to everyone else."
But the Supreme Court should go further and find that Texas’ sodomy law—and
other states’ laws that do not apply only to gays but are mainly used
against them—infringes on the constitutional right to privacy. The conduct
at issue in this case is every bit as private as having an abortion, using
contraception and other activities the Supreme Court has held to be protected.
To reach this holding, the court must overturn Bowers, which held that it
was "facetious" at best to suggest that consensual, private gay sex
is constitutionally protected. Justice Lewis Powell Jr., the critical fifth
vote, later called the ruling a mistake. In the 16 years since Bowers, society
has come a long way toward accepting gay people. Nearly half the states that
had sodomy laws in 1986 no longer do. And since then, thousands of states,
localities and private companies have enacted antidiscrimination policies
protecting gays.
The movement on this issue is all in one direction: toward greater
acceptance, and legal protection, for gays. There can be no real doubt that
Bowers will eventually be relegated to the same dustbin of legal history as
Plessy v. Ferguson, which upheld separate-but-equal racial classifications,
and the Dred Scott case, which required the return of fugitive slaves. It is
time to toss Bowers out and to accord gay people full rights under the law.
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