_the majority would have

page 6 - Out in the Mountains  

fiom P“g_e,5 Hardwick v. Bowers;
whole approach of the majority justices
was viciously heterosexist. The laws
being challenged did not prohibit anal
and oral sex  ; it was a
general prohibition, as it is in IS of
the 23 other States with such laws.
There was no sound legal reason for
the majority to restrict the analysis to_
gays; only the fact that the challenge
was brought by a gay man gave them
any semblance of appropriateness in
doing so. Accusing the majority of
distorting the question presented by the
case, the four dissenting justices argued
--correctly-- that the case was really
‘about’ ‘the most comprehensive of
rights and the most valued by civilized
men [sic]... the right to be let alone’.'

So why did the majority judges
obsess on ‘homosexual sodomy?" One
possibility is that they simply wished
to avoid the issue of heterosexual
intimacy altogether. It may well be
that the majority judges believe that n_Q
Q11; has a right to sexual privacy;
certainly their reasoning, specious as it
is, would support that conclusion. But
imagine how foolish they would have
appeared to the general public if their
ruling had been allvinclusive. People
whose notion of "family‘ has been
gleaned from glossy post-war magazines
may be able to agree with the idea‘
that "family, marriage and procreation‘
cannot be compared with "homosexual
activity.‘ Yet even they would look
askance at a statement that there
would be no connection between the
first three and “intimate” sexual
behavior." Obviously these things are
related; equally obvious is the
conclusion that if one is a fundamental
right, all are. Imagine too how idiotic
seemed
arguing that since non-procreational sex
has been proscribed since ancient times,
and was forbidden in the colonies, and
is still outlawed in I9 states and D.C.,
the Constitution doe not protect oral
and anal sex between straights. They
would have been accused of living in
the Middle Ages, and condemned by
nearly everyone.

In short, if the Supreme Court had
ruled that State legislatures may
constitutionally intervene into the
intimate lives of all Americans, public
uproar would have been immediate and
deafening. So why didn't the Court
just say: “Gays have no right to sexual
privacy but straights do?‘ Gays are an
easy target. after all. The media's
insistent characterization of AIDS as a
‘gay plague‘ has convinced a lot of
people that it is okay to trample on
gays’ civil rights. And a lot more
thought it was fine to begin with:
witness Falwell heralding the Court's
decision as "a clear statement that
perverted moral behavior is not
accepted practice in this country.‘
(NYT, July l, 1986)

I think the answer to this puzzle is
fairly straightforward. The majority
judges recognized that either sexual

intimacy is a right, or it is not,
regardless of the gender of one's
partner. And I think that recognition
horrified them. Either they had to
announce to a nation heavily dominated
by the religious Right that everyone,
including gays, is entitled to engage in
whatever consensual sex acts they
please, or they had to risk the wrath
of the rest of the population by saying
that government can regulate everyone’s
sexuality. There simply was no basis_ on
which to rule that gays and straights
enjoyed different degrees of privacy.

And so, fearful of hostility from
both liberal and conservative straights,
the Court decided it could defer the
question of heterosexuality --perhaps
forever-- and instead focus on a group
that few people would rally to support.
By exempting straights from their
ruling, the court was attempting to
deprive gays of their most logical allies
in struggles against sexual repression:
other sexual human beings. To a great
extent, it succeeded. Liberals have
decried the ruling, but for the most
part, straights have been silent,
confident that they are safe-- at least
for now. ‘

The Supreme Court's ruling ‘does
not necessarily preclude all future
federal constitutional challenges to
State sodomy laws. For example, 14th
amendment equal protection arguments
can be made against laws which
penalize oral/anal sex between gays but
not straights. or against those which
prohibit it between two males or
between a male and female, but not
between two women, as is the case with

many statutes.

But whatever the  for
restoration of rights at the federal
level, gays had best not hold their
bgreath awaiting them. Action now is
better concentrated at the State level.
Since State constitutions can be
interpreted to offer more rights than
the federal one, nothing stops State
judges from invalidating sodomy
statutes on State constitutional grounds.
In fact, in several states, including New
York and Pennsylvania, they have
already done so, using an equal
protection analysis. Nonetheless,
litigation in this area is a gambler‘:
game. Win and the other side forfeits
its repression chips. ‘Lose, and they get
the jackpot.

A slower, less risky, course is
concentrated political effort, both

formal and informal, directed at
repealing the sodomy statutes
themselves. In some cases, ordinary
lobbying maybe the most effective
technique; in others, dramatic actions,
such as mass surrenders of gays and
straights who are ‘guilty’ of this
heinous crime, may prove persuasive.
Obviously, repeal will not come easily.
The 24 States with sodomy laws are
not exactly bastions of liberalism:
Alabama, Texas, Arizona, Arkansas,
Tennessee, etc. (Of the northeastern
States, only Rhode Island and Maryland

still outlaw sodomy.) And at the same
time, gays who live in more progressive
areas must not be lulled into
complacency. What flnj'_d_\yjg_k v flQ_\_av_g:_§
means in practical terms is that there
will be no federal constitutional
impediment to States re-enacting laws
they previously repealed, and moreover,
it means that proponents of
re-enactment will be armed with juicy
and authoritative rhetoric to cite on
behalf of their efforts.

Paradoxically, the most critical
impact of the decision will probably be
felt in areas it "legally" does not touch.
Sodomy laws or not, cops are not going
to be busting into bedrooms. But the
Court's language and reasoning will no
doubt be invoked whenever gay rights
are at stake. For example, in States
still having sodomy laws, custody
battles between gay and straight
parents are likely to focus on the
"illegality" of the gay parent’s behavior,
and the "trauma" the child would
endure if the parent were arrested.
While it is certainly true that anal and
oral sex --all that is usually prohibited
by sodomy laws-- are far from the only
forms of gay sexual expression, the
distinction may well be lost on a
conservative judge. and frankly, who
would want to try making this
distinction in the midst of a custody
suit? Similarly, even though the
Supreme Court's decision has no legal
effect on issues relating to adoption, or
immigration, or discrimination in
housing, employment or occupational
licensing, it will surely be quoted
extensively in attempts to limit gay
rights in those areas.

As noted earlier, most people will
not remember the details of the
decision for long, or will not
understand its legal limits. So one
vital task for gay activists has to be
public education, both about the terms
of the decision and about its potential
effect on the lives of millions of
Americans. Another crucial task is a
redoubled effort to secure
anti-discrimination provisions in State
and local laws, in union contracts, in
non-union employment policies, in
school admission procedures and
disciplinary codes, in social service
manuals, etc. A third is to publicize
and promote enforcement of such
regulations as already exist.

Even thoush Iiar.d.\_vJ9.ls v Boxers
will not result in massive arrests and
prison terms for gays,its ideological
repercussions will be tremendous.
Perhaps the best way to conceptualize
the damage this decision will do to
gays is to imagine what a victory the
opposite result would have represented,
both in legal and moral terms.
Weighing the political advantage now
held by the right, it is clear there is
no time to wait before starting to fight
back.