Sodomy, Federalism and Their Discontents

America’s Queer Liberty

Don’t take your anal sex for granted, readers. Despite what the American Constitution may say, not all people, nor their genitals, are created equal. Even before the Constitution – and, in fact, the Declaration of Independence – the thirteen colonies enforced sodomy laws. As the nation grew, so did the sexual policing.

By 1960, all fifty states had either common law or written statutes banning the nebulous “sodomy,” which meant anything from hetero oral sex to homo anal sex, consensual, rape or “unnatural sin,” a perplexing term considering sin’s allegedly natural, right?

Federalism, the division of state and central governments, only further highlighted – and sometimes entrenched – the nation’s congenital sexual inequities. Find out what we mean, after the jump.

The sexual tide started to change even before all the legislative “norms” were set in lawyerly stone. As we mentioned in last week’s edition. of our continuing series, America’s Queer Liberty, the American Law Institute drafted a 1955 Moral Penal Code suggesting states limit libidinal laws. Illinois did just that in 1962, when it became the first state to legislatively repeal sodomy regulations. Idaho attempted to follow suit in 1965, but conservative legislators raised the subject of hell and, well, the law went down like a fallen angel. Things would soon change, however, as revolutionary research gave rise to new carnal theories.

Albert Kinsey and Evelyn Hooker, who wrote 1957’s The Adjustment of the Male Overt Homosexual, both concluded that gays weren’t mentally ill, the prevailing opinion of the backward times. In the aforementioned Adjustment, Hooker wrote, “Homosexuality as a clinical entity does not exist. Its forms are as varied as are those of heterosexuality”. She went on, “Homosexuality may be a deviation in sexual pattern which is within the normal range.” Homosexuality and normal in the same sentence?! Had the world gone nuts? No, not yet, but it would soon enough. And nothing would ever be the same, especially gay sex lives.

Hooker and Kinsey’s research certainly helped the case of The Mattachine Society, a gay rights movement founded by San Francisco-based Harry Hay in 1950. The group grew steadily, splitting and branching out across the nation to root in New York, Washington and Boston. A self-professed “homophile” movement, The Mattachine Society and its offshoots shot to normalize the gay image, a mission they accomplished with a variety of gay publications, such as The Mattachine Review and its lesbianic sister, One. These first fag rags helped spread the good gay word. Rodger Streitmatter writes in Unspeakable: The Rise of the Gay and Lesbian Press in America: “The magazines gave an oppressed minority a chance to express thoughts…” Hay and other gay allies wanted nothing more than to convince their fellow Americans that they were, in fact, normal. Their message, unfortunately, fell flat. It would be revived, however, in the late 1960s.

Gay America exploded on June 28th, 1969, when queers fought back against police in the infamous Stonewall Rebellion. Transgender activist Sylvia Rivera fondly remembered that fateful night,

I remember someone throwing a Molotov cocktail and I just said to myself in Spanish, ‘Oh, my God, the revolution is finally here’ and I just started screaming freedom, we’re free at last, you know, and it felt really good.

Rivera and her peers coalesced that day. Gone were the anti-political, frightful gays of Harry Hay’s time. So, too, were the moderate politics.

The Gay Liberation Front formed within days of the Stonewall Rebellion. Firmly aligned with America’s leftist movement, the GLF wanted nothing less than to strip America of its restrictive sexual policies. Through their efforts, they hoped, they could launch a full blown revolution unseen since the American Revolution. Their’s would be a corrective to the Constitution’s slanted sins. All men would truly be created equal.

The GLF proved too radical for some members, who went off to form the Gay Activist Alliance. Both groups pushed politicians, clergyman and everyday pedestrians to embrace the movement. Like the Mattachine Society, GFL and GAA published literature and magazines on the movement. Free from their oppressive bonds, however, they were free to engage – and sometimes terrorize – America’s political leaders. In addition to taking on politicians, the GLF and GAA lent their voices to the campaign to change the American Medical Association and the American Psychiatric Association’s respective stances on the gays. For example, On May 14th, 1970, GLF members raided an American Psychiatric Association conference in San Francisco and demanded the good doctor’s change their anti-gay stance. Three years, later, the Association removed homosexuality from its list of mental disorders. The American Medical Association also took a stand for gay rights, lashing out at doctors looking to “cure” homosexuality, says David Eisenbach in Gay Power: An American Revolution.

While GLF, GAA and their allies were chipping away at oppression in New York, gay-friendly and gay activists were teaming up to take on individual state sodomy laws. In 1969, the same year as the Stonewall Rebellion, a young, queer reverend named Troy Perry and an activist called Morris Kight put pro-sex pressure on an Assemblyman named Willie Brown – an appropriate name for the case at hand: repealing California’s sodomy laws. Unfortunately for them, a former actor named Ronald Reagan had recently taken office.

A die-hard Republican and Christian, Reagan made it his mission to uphold the Golden State’s abominable prohibitions. Eventually Reagan and his cronies crumbled under new judicial rulings, most of them oral in nature. That is, the laws against oral sex were melting away – and so were Golden voter hearts.

In 1974, California’s citizens voted to expand the state’s lackluster Declaration of Rights to echo the Declaration of Independence’s seminal – and flawed – words,

[A]ll people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

Queer Californians were included. The bedroom became a safe haven, particularly after the Statutes and Amendments to the Codes of California 1975, which altered the state’s consenting adult laws. Consensual anal or oral sex would soon be totally free and legal in the state of California. Well, not always free, but you get the idea. Dozens of American states were swept away by sodomite madness. Hawaii, Colorado, New Mexico, New Hampshire, Oregon and twelve other states reamed their anti-anal edicts.

The national mood shifted toward the end of the 1970s. The GLF fizzled in 1972. The GAA kept growing until 1974, when an arsonist torched their SOHO HQ. It limped on for another few years, but remained largely ineffective. While the GAA crumbled to the ground, their mission sparked new activist flamers: The National Gay and Lesbian Task Force.

Started as a grassroots organization – what wasn’t? – the Task Force unified gay activists to form the nation’s first national gay rights organization. In those first years, the group took on a discriminatory IRS, hateful churches and forced the American Psychiatric Association to change its definition of homosexuality, which it did in 1973. Former executive director Bruce Voeller wrote in a 1976 group newsletter:

[The Task Force’s purpose is] to re-educate society, including its homosexual members, to esteem gay men and women at their full human worth and to accord them places in society which will allow them to attain and contribute according to their full human and social potential.”

They soon began petitioning politicians and other prominent social leaders to adopt the queer cause. Those rabble-rousers even organized a 1977 meeting with President Jimmy Carter – the first time a president had invited gays to the White House. The gays were a force to be reckoned with – and they would soon meet their match with organizations like Christian Voice and its successor, The Moral Majority. Those groups and their effects on America’s queer liberty will become more clear in later chapters.

Frustrated with legislative stonewalling, gay activists and their allies looked for a new arena for their civil rights fight. The sodomy war found a new front – or is it back? – in the nation’s judicial branches. Some states upheld their judge’s rulings. Others, however, refused to concede and fought all the way to the Supreme Court, which often collaborated with conservative states, leaving the liberals unprotected.

In 1975, the United States Supreme Court, packed full of conservative Nixon appointees, including Warren Burger and William Rehnquist, affirmed a lower courts ruling in Doe v. Commonwealth’s Attorney for the City of Richmond: Virginia’s sodomy laws remained intact. That case laid the foundation for two other cases: the famous 1986 case, Bowers v. Hardwick and the lesser known, but just as important Baker v. Wade of 1985, which upheld Texas’ anti-gay sodomy laws:

The 5th Circuit Court of Appeals overturned a trial court decision in Baker v. Wade that had invalidated the Texas Homosexual Conduct Law (a sodomy law that outlawed anal and oral sex only for same-sex partners). The 5th Circuit court held that Doe v. Commonwealth‘s Attorney was a binding precedent that could be changed only by the Supreme Court.

Doe would get another go with Hardwick, a case that would completely discredit the Declaration of Independence and America’s illusory liberty.

It all started in 1982 when a cop entered Michael Hardwick’s Georgia home, caught him and a pal sucking each other off and promptly arrested the not-so-ambiguous gay duo. The district attorney didn’t pursue the case, but Hardwick fought back by suing Georgia Attorney General Michael Bowers. Bowers bit back and the boys duked it out all the way to Washington, where Justice White delivered an opinion it thus:

Respondent then brought suit in the Federal District Court, challenging the constitutionality of the statute insofar as it criminalized consensual sodomy. He asserted that he was a practicing homosexual, that the Georgia sodomy statute, as administered by the defendants, placed him in imminent danger of arrest, and that the statute for several reasons violates the Federal Constitution.

The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.

Federal laws and state laws were pitted against one another. The rule of law had to rule on itself. And guess what – it lost. The Supreme Court voted 5-4 that the United States Constitution does not guarantee gays to life, liberty and the pursuit of sexual happiness. There were no privacy laws when it came to gay sex.

Chief Justice Burger, who would retire later in the year, wrote in his concurring personal opinion:

I join the Court’s opinion, but I write separately to underscore my view that, in constitutional terms, there is no such thing as a fundamental right to commit homosexual sodomy.

The ruling recalls liberalism’s greatest and most contradictory tenet: laws make man free. With no law saying gays can freely fuck, they don’t necessarily have the right.

The Hardwick ruling set back the push for a national repeal, but only energized the state-centric movements. Working on a small scale, gay activists pressed a number of states to dismantle their regulations. One of the most successful examples comes from Kentucky. In Kentucky v. Watson, the Blue Grass government fought to prosecute Jeffrey Wasson for inviting an undercover cop to a little consensual anal sex. In a Kentucky Supreme Court ruling, the judges upheld Wasson’s equal protection under the law and, more importantly, right to privacy.

Privacy also played a critical role in Lawrence v. Texas, the 2003 Supreme Court case striking down the anti-gay Texas law upheld in Baker v. Wade. Ruling in favor of John Geddes Lawrence, who coppers caught having consensual anal sex in house, The Supreme Court, overturned Bowers v. Hardwick, the 1986 case upholding Georgia’s sodomy laws. Delivering the justice’s judgment, Justice Kennedy wrote,

The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government… The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

The 6-3 ruling struck a symbolic blow against America’s sodomy laws. No state could legally, constitutionally prosecute a man or woman for consensual anal or oral sex. In theory, at least. And, as we’ve seen throughout this series, theories rarely hold up.

Troy Perry, MCC’s founder who helped overturn California’s sodomy law lauded Lawrence, describing it as “the most significant victory for gay and lesbian rights in my lifetime”. Unfortunately, not all of America’s sodomy laws fell to the judicial sword. Virginia, Oklahoma, North Carolina and the Military all maintain sexually-minded legislation. And often try to enforce them, as Oklahoma recently attempted in a case against a homophobic pastor.

Clearly something isn’t quite right here in the U.S. of A: ours to be the most democratic, liberal nation in the world, largely due to its federalist structure. That structure obviously doesn’t hold up. And not only when it comes to doing the dirty. The United Parcel Service, more commonly known as UPS, recently denied New Jersey gay couples the same benefits afforded straights.

In a letter to one worker, the courier justified disavowing New Jersey’s domestic partnership rights: “New Jersey law does not treat civil unions the same as marriages.” As an international company, UPS is not required to abide by state laws, but by federal laws. America’s misguided, mismanaged federalism does not ensure the equal rights afforded by the Federal Constitution. The constitution and rule of law are exceedingly complex political and legislative mechanisms. That said, federalism’s hardly the only mechanism hindering America’s liberal promise.

Many more American political traditions threaten our Constitutional rights, including our – shocker! – plurality voting system. As we’ll see next week, One Man, One Vote not only hinders political debate, it helps the Christian right trample our rights.

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