Emma's Blog on Gay Rights

As history unfolds before one’s eyes, humans appear to be gradually becoming more complex overtime. However, when reviewing this history closer, it begins to become obvious that it is not humans who are changing, it is in fact society. Thus, as this history moves forward, society in America, at least within the last 100 years, has become more diverse, and while open to new opportunities and ideas, may not always be accepting.
While human rights have possibly been the greatest focus of our country, gay rights only recently has entered into the media as a major issue. With this new contemporary issue come the questions that surround it. Does the American Constitution protect homosexual conduct? Or more simply, does it protect the rights of those are openly homosexual? From the 1950’s until the present, this issue has gained greater media coverage, become more of a central focus within present society, and, similar to racism, has also been as issue that reflects back further into society than most people realize.
In 1982, the issue of gay rights was brought into the public more than ever in the United States Supreme Court case, Bowers v. Hardwick. Respondent, Michael Hardwick had been found by a police officer in the act of sodomy with another male in Hardwick’s bedroom. The police officer had originally come into the house, let in by someone who had been living with Hardwick at the time, to speak with Hardwick about throwing a beer bottle out the window. Hardwick was then charged with violating the Georgia statute which stated that “a person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.” The case was thus brought to the District Court for the Northern District of Georgia, where it was dismissed, with the court ruling in favor of Attorney General Bowers. Hardwick then appealed, bringing the case to the Court of Appeals who reversed the lower court, finding that the Georgia sodomy statute was in fact an infringement upon Hardwick’s Constitutional rights. Again, this case, as every other, focuses primarily on the Constitutional rights that do or do not cover those of a different sexual orientation. Therefore, because of the continuing disagreement as the state of Georgia appealed, the case was brought to the United States Supreme Court. By the end in 1986, the decision went in favor for Bowers with a vote of 5-4, with the emphasis on the historical negative attitudes towards homosexual sex, as well as the belief that these acts are not protected under the Due Process clauses. Those who dissented placed less emphasis on the act of homosexual sex and more on the right to privacy, “the most comprehensive of rights and the right most valued by civilized men.” These Justices, including Justice Brennan, Marshall, Stevens, and Blackmun, used the Fourth Amendment frequently, again stressing the fact that Hardwick was found in his home. Later, one of the Justices who was in support of the Supreme Court’s decision, Justice Powell, described his vote as a mistake, therefore agreeing with the argument made by Justice Brennan, Marshall, Stevens, and Blackmun. Interestingly, in 1999, the state of Georgia struck down the original statute from this case as violation of the Georgia Constitution.
Approximately 10 years later in 1996, the Supreme Court again faced the issue of gay rights. However, the question moved from a concern of the sexual acts of homosexuals to the basic, necessary rights of those who are openly gay within the Constitution. 4 years prior, the state of Colorado created an amendment to the state constitution which banned discrimination in many transactions and activities. What made this amendment so controversial however, was the fact that it prohibited all legislative, executive, or judicial action within the state designed to protect those who are openly gay. The amendment plainly states, “No protected status based on homosexual, lesbian or bisexual orientation. Neither the state of Colorado, through any of its branched or departments…..shall enact….ordinance or policy whereby homosexual, lesbian or bisexual orientation….shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination.” Soon after the amendment passed, the issue was taken to the District Court for the City and County of Denver, where the court ordered in favor of the amendment, claiming that it put gays and lesbians in the same position as all other persons. Colorado then appealed to the state court, who then affirmed the district court’s decision. Finally, the case, called Romer v Evans was brought to the United States Supreme Court, who by a vote of 6-3 found that the amendment lacked rational basis, violating the equal protection rights of homosexuals. The respondent in this case was Evans, while the petitioner was Romer, the governor of Colorado. Those who supported the final decision included Justices Stevens, O’Connor, Spouter, Ginsberg, Breyer, and Kennedy who stated, “It is not within our constitutional right to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seeks its assistance.”
In 2000, the issue was again brought up in the Supreme Court, however in this case, it brought up the notion of influence of an openly gay/lesbian/bisexual individual on society. A model member of the Boy Scouts, James Dale entered the club in 1978, became a boy scout in 1981, and in 1988 achieved the rank of Eagle Scout. A year later, Dale became an adult member of the Boy Scouts, becoming the scoutmaster of Troop 73. During the same time, Dale left home to attend Rutgers University, where he began to speak publicly about being gay, becoming the copresident of the Rutgers University Lesbian/Gay Alliance. A month after being interviewed in a newspaper about his advocacy of homosexual teenagers’ need for a gay role model, Dale received a letter from the Boy Scout Council Executive of his area revoking his adult membership. Dale responded asking why he had been revoked, and soon received a response stating that the Boy Scouts “specifically forbid membership to homosexuals.” In 1992, Dale filed a complaint to the New Jersey Superior Court against the Boy Scouts, however the court ordered in favor of the Boy Scouts stating that while New Jersey’s public accommodation statute forbids discrimination on the basis of sexual orientation, the Boy Scouts was not a place of public accommodation, but is instead a private group. Contrastingly, the New Jersey Superior Court’s Appellate Division rejected the Boy Scouts’ federal constitutional claims. The New Jersey Supreme affirmed this judgment, and thus the Boy Scouts appealed to the United States Supreme Court, where the First Amendment’s right to express oneself became the centerfold of the case. Similar to the “Don’t ask, don’t tell” policy within the military, does one have the right to express oneself in terms of their sexual orientation, as respondent Dale did? The decision of the court instead favored the respondent, Boy Scouts of America. In simplest terms, the court reversed the argument of the First Amendment, stating that the Boy Scouts of America have a right to express their beliefs as well, the beliefs that discriminate those who express themselves openly. As contradictory as this argument may sound, what is more unbelievable is that this decision had taken place within the current decade.
In 2003, the same issue brought up in Bowers v. Hardwick was brought to the court and reopened. In the case of Lawrence v. Texas, the scenario remained entirely the same in which officers (this time in Texas) entered a private residence due to another possible crime (reported weapons disturbance) and walked in on two men (John Lawrence and Tyron Garner) engaged in a sexual act, again violating a state statute against sodomy. The two men were then arrested and charged for a crime of “deviate sexual intercourse, namely anal sex, with a member of the same sex (man).” When the petitioners, Lawrence and Garner, were brought to the County court, they argued that the statue was a violation of the Equal Rights Protection Clause in the Fourteenth Amendment. The court then voted in favor of the respondent, the state of Texas, and fined both Lawrence and Garner $200. The case was then brought to the Texas Court of Appeals , in which the petitioners presented on both equal rights protection and right to privacy grounds, in which the court voted in favor for them on the basis of the violation of the Equal Rights Amendment in the Texas Constitution. The case was finally brought to the U.S. Supreme Court in 2003, in which the court ordered in favor of Lawrence and Garner. As opposed to the Bowers v. Hardwick case, the majority of the court, while emphasizing the violation of privacy, stressed greatly the violation of the Fourteenth Amendment, the equal rights amendment. Ultimately, the case overruled the decision of the Bowers v. Hardwick case, stating, “The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons…”
Now, only six years later, it is hard to believe that cases such as these have occurred within the past 25 years, and continue to be brought up daily. Therefore, while many believe that as a society, America has come far in its fight against discrimination, there is still much more fighting that is left undone. As Justice Blackmun explained in his speech arguing against the Court decision of Bowers v. Hardwick, “In a variety of circumstances we have recognized that a necessary corollary of giving individuals freedom to choose how to conduct their lives is acceptance of the fact that different individuals will make different choices.”
-Emma