Lambda Lore

Sodomites unite

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Ten years ago the Supreme Court justices changed the lives of gay people by writing off those consensual sodomy laws impinged on the Constitutional liberties of Americans. There is a whole generation of gay youth in Utah today who have come of age after that historic June 26, 2003, Supreme Court ruling which struck down Texas’ sodomy law as an unconstitutional violation of privacy. They will never know what it’s like to be a sexual outlaw.

Lawrence v. Texas

Many who are fighting for marriage equality today hardly remember the landmark decision that invalidated a Texas law, and others like it, which criminalized anal and oral intercourse, saying it was a violation of the due process clause of the 14th Amendment. The 2003 ruling in the case of John Geddes Lawrence and Tyron Garner v Texas ensured the termination of all anti-sodomy laws in the 14 states which still had laws on the books criminalizing consensual non-vagina-penis intercourse. These “blue laws” were used, especially in Utah, to justify discrimination against gay people and to deny them equal protection under the law because their actions were “criminal.” (Utah’s law is still on the books, but is unenforceable because of Lawrence.) The decriminalization of homosexuality has also opened the door to marriage equality.

The notorious Texas case entered the national political debate in 2003 with conservatives like Rick Santorum, a former member of the Senate’s Republican leadership, telling the Associated Press that if the justices overturned the Texas law, “then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery, you have the right to anything.” However, writing for the 6–3 court majority, Justice Anthony Kennedy wrote, “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct.”

Justice Antonin Scalia, joined by Chief Justice William Rehnquist and Justice Clarence Thomas, dissented, saying the court “has largely signed on to the so-called homosexual agenda. It is clear from this that the court has taken sides in the culture war, departing from its role in assuring, as neutral observer, that the democratic rules of engagement are observed.”

The case stemmed from a 1998 arrest of a gay Houston, Texas couple who had engaged in “same-sex” intercourse. Under a Texas law passed in 1970, which made it a crime to engage in homosexual sex, the Texas state appeals court upheld the law because it “advances a legitimate state interest, namely, preserving public morals.”

This lower court opinion was bolstered by the 1986 Supreme Court decision that upheld the prosecution of two gay men under a Georgia anti-sodomy law which denied gay people the right to privacy. Justice Kennedy said the 1986 court decision “was not correct when it was decided, and it is not correct today (2003).”

Bowers v. Hardwick

The infamous Bowers v. Hardwick decision spurred the October 11, 1987 March on Washington, which inspired the formation of a National Coming Out Day to heighten gay visibility. To show how bigoted the sodomy laws were applied, in 1997, the former Georgia Attorney General Michael Bowers, who fought to have the US Supreme Court uphold Georgia’s sodomy law, admitted to having had an adulterous affair that lasted over a decade. And while Georgia’s sodomy law carries penalties for adultery, Bowers was never dragged through the courts.

The Supreme Court’s 2003 decision prompted 36 cities to organize celebratory rallies, among them Salt Lake City where nearly 100 exuberant people met on the steps of the state capitol. Many wept openly while others cheered. I took pictures and recorded remarks from the Utah Stonewall Historical Society. A close friend of mine exclaimed, “Woohoo! I’m going to celebrate by ‘sodomizing’ my brains out!”

Felony

Until 1969, sodomy was a felony in Utah, where judges sent violators to prison, jail, or the state mental institution. In 1957, a 20-year-old Layton man was sentenced to three to 20 years in state prison for sodomy. In 1969, the state legislature reduced the severity of sodomy from a felony to a misdemeanor in order to ensure more convictions of homosexuals. Unlike the Texas law, which was specifically aimed at homosexuals, Utah made some sodomy legal in 1977 for married heterosexuals only. Utah’s law forbade “any sexual act with a [unmarried] person who is 14 years of age or older involving the genitals of one person and the mouth or anus of another person, regardless of the sex of either participant.”

The court’s decision to abolish sodomy laws in America came nearly 34 years, almost to the day, after Canada had repealed its sodomy laws on June 27, 1969. On that date all homosexual acts in the U.S. were still criminal except in the state of Illinois. Therefore, a raid on a gay bar in Greenwich Village that night didn’t seem out of the ordinary.

The late civil-rights attorney, Brian Barnard, endeavored many, many times to remove Utah’s sodomy laws from the criminal code without success. The state claimed no one was being harmed by the sodomy statute being on the books. In fact, former Utah Attorney General Mark Shurtleff argued that, while unenforceable, Utah sodomy laws had “pedagogical value,” which can only be surmised to mean that Shurtleff believed that the State of Utah has the right to condemn sodomy regardless of the prohibition being effectively invalidated by Lawrence v. Texas. As Ben Fulton, former editor of City Weekly once wrote, “Our legislature will never let go of any tool that lets them beat up on gays and lesbians.”

Utah Eagle Forum’s head harpy, Gayle Ruzicka, is still committed to making sodomy illegal in Utah again, under the guise of sodomy being a public health menace. “Anytime you put semen into those cavities of the body not made to receive the semen, you have a much higher chance of disease and infection. So there’s a very good health reason why those acts should remain illegal.”

Is that why the STD rate is higher among heterosexuals than gays, Gayle? What about lesbians and their “angel sex?” By what means will Ruzicka criminalize them? I wonder if Gayle thinks gay sex is “icky,” but woman-on-woman action is hot.

More than 150 years ago, a mid-19th century German named Karl-Heinrich Ulrichs became the first person in modern times to speak out publicly in defense of same-sex love. At the Congress of German Jurists in 1867, he urged the repeal of sodomy laws. He was booed. Some people are still booing today.

The most progressive gay civil rights movement in the early 20th century was in the Weimar Republic of Germany, where you could be gay as long as you registered with the local police. We know how badly things turn out when fascism comes to power. In fact, fascism in Russia has recently called the promotion of homosexuality a criminal offense. African nations are making homosexuality illegal and calling on the death penalty for sodomy. In certain Middle Eastern countries young gay men are being tortured and hanged.

As gay people, we must be ever-vigilant in guarding our rights to love, marry and yes, even attend White Parties, if that is your thing. Never take freedom for granted. Pride is more than a party. Its being proud of your community, your friends and lovers, and yourself. The 4th of July includes our “pursuit of happiness,” too.

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