October  . page 5

Queer bashing by the
United States Supreme Court

frompageef

intercultural dating game that so often
ends in misunderstanding and broken
hearts. It simplifies things
considerable. Many straight volunteers
who start off swearing to remain
uninvolved in their sites find their
resolve weakening after months of
loneliness. Another» more definite
advantage is the possibility of spending
nights with a lover without tossing
one's reputation to the winds. In a
culture where chaperons rule, the
lengths to which straight couples have
to go to snatch time alone would
stymie any budding relationship.

On the who our lives seem easy by
comparison to the plight of gay
Paraguayans. Any though I hesitate to
generalize about South America as a
whole, I think the situation is much
the same everywhere. The only notable
exceptions are probably the large
cosmopolitan cities like Rio or Buenos
Aires - both favorite volunteer vacation
spots. Even Amnesty International, the
London-based human rights
organization, will not accept people
imprisoned because of their sexual
preference as prisoners of conscience.
As hard as it may be to believevat
times, gays and lesbians in the U.S.
have much to be thankful for.

For
confidential

AID S

Information

 

Call

1-BOO
882-AIDS.

Linda Vance

fl_gr_d_\_v_j_c|g v. B_Q;N_§[§_, decided June
30 by a sharply divided Supreme Court,
is a clear signal that the age-old
tradition of queer-bashing is alive and
well in the United States. Dismissing
the claim that adult Americans have a
right to choose their own sexual
identities, the Court ruled that the
right to privacy does not protect
consensual oral and anal sex between
gays. To hold otherwise, the Court
suggested, would be to authorize not
only homosexuality by also ‘adultery,
incest and other sexual crimes."

What does this mean for gays? In
legal terms, not much --yet. In terms
of the struggle to gain equal human
rights in a sexist society, it means
having to resume a defensive stance to
fend off the waves of repression and
ant-gay laws likely to swell as a result
of this ruling. Some people already
misunderstand the scope of the ruling,
and think the Supreme Curt held that
homosexuality is illegal; others will
forget its details in time, remembering
only that it was against gays. Any
many, knowing full well the decision's
limitations, will nonetheless exploit it to
muster additional hatred among the
Reagan Right.

The ruling is clothed in legal
language and terminology, but at its
center is a solid core of homophobia.
constitutional rights analysis is not so
arcane a practice as the multiplicity of
tomes, texts, reviews, comments, notes,
articles and cases would suggest.
Basically, it involves a simple step by
step process: identify the right being
claimed; determine whether it is
“fundamental” or not; and apply the
appropriate ‘standard of review‘ to
ascertain whether the law affecting the
right is constitutionally valid. If the
right is "fundamental," the state must
show a ‘compelling interest‘ in
regulating it - something that, as a
practical matter. States are almost
never able to do. If the right is not
fundamental, the State must at least
show that there is some ‘rational basis"
for the law in question, usually by
proving that the prohibited behavior is
dangerous to others. Ordinarily, the
argument that people find the illegal
behavior distasteful or even repugnant

‘gets nowhere with the Supreme Court.

Look, for example, at 39; v 31151;, the
abortion decision. There the majority
judges were dealing with an issue that
much of the public was 1j_|_d_ over. Did
it phase them? No -— they held that
what was being asserted was a right to
privacy, that privacy was a
fundamental right, and that since the
State couldn't show a "compelling State
interest" in interfering with it, laws
restricting abortions in the first three
months of pregnancy were invalid.
And for over 13 years. the Supreme

Court has upheld that opinion. despite
threats, hate mail, protests, pressure
from Reagan, legislative attempts to get
around it --even the appointment of
new, more conservative judges to the
Court. So it isn't particularly
surprising that most lawyers and
academics thought that when the Court
finally took a case dealing with sexual
intimacy, the majority would recognize
a fundamental right when they saw one
and strike down all the remaining
sodomy laws as unconstitutional. Well,
we all make mistakes.

The majority of the Supreme Court
refused to see any connection
whatsoever between personal sexual
choices and the right to privacy. This
remarkable feat of vision was
accomplished by donning intellectual
blinders. Instead of examining a broad
right to sexual intimacy for everyone,
gay and straight. they looked
specifically at a "right to engage in
homosexual sodomy,‘ and found that
such a right did not exist. Reasoning
that the cases which upheld a
fundamental right to privacy had dealt
primarily with the decision to ‘beget or
bear a child,“ the Court asserted that
"(N)o connection between family,
marriage or procreation on the one
hand and homosexual activity on the
other“ could be shown. Nor could a
fundamental right to consensual sodomy
be said to be “implicit in the concept
of ordered liberty“ such that "neither
liberty nor justice would exist if (it)
were sacrificed.‘ Because proscriptions
against sodomy have existed since
ancient times, and because anti-sodomy
laws were on the books in the original
colonies and in all 50 states until l96l,
to claim sodomy as a fundamental right
would be "facetious," the Court said.
One can‘! help but wonder what the
Court would have done if the case had
been brought by a lesbian, since that
same venerable tradition of biblical
injunctions and sodomy laws utterly
ignored the existence of female
homosexuality. in any case, having
thus identified the right as
non-fundamental, the Court was able to
skip to the step of examining the
"rational basis” of Georgia's sodomy
laws. Rejecting arguments that a
rational basis for a law requires some
sort of showing that the regulated
conduct hurts the general welfare, the
Court ruled that a ‘presumed belief of
a majority of the electorate in Georgia
that homosexual sodomy is immoral and
unacceptable" was enough. And with
that, they stamped and sealed their
approval on the sodomy laws of 24
States and D.C.

The Moral Majority is no doubt
delighted with this decision. Not only
is the result blatantly anti-gay, the

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