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This story really starts several decades before the decision and ended in part in 2003. There were rarely-enforced sodomy laws on the books until the past two hundred years or so. The laws were designed to make religiously condemned behavior illegal, promote child bearing and stigmatize groups who participated in behavior that was considered outside the mainstream. Therefore, when they were enforced, they were targeted at those unfavored people:

In America, the application of sodomy laws was strongly slanted along lines of race, ethnicity, and class. The U.S. Census Bureau reported in 1880 that 63 prisoners were then incarcerated for crimes against nature. A majority (32) of the prisoners were males of color in the South. A third of the white prisoners were foreign (European) born. Other evidence suggests that virtually all the prisoners were laborers or farm workers.

These laws began to be enforced more stringently when the United States started panicking over morality, gender roles and later, child abuse. They quickly morphed from something that was not seen as a pressing issue (indeed the first sodomy law Thomas Jefferson advocated for actually reduced the punishment for it as compared to previous laws - and his liberal version was rejected) into an institutional regime used to criminalize and marginalize gay and gender nonconforming people. Laws appeared in every state and became more secular.

Then there was the McCarthy Era, the Red Scare and the Lavender Scare.

The United States government began purging gay people from all government jobs in the late 40s. The military started issuing "blue discharges" to gays, and to blacks, to keep them from serving. This was due in part to the Red Scare and worries over Communists in government. But though McCarthy is known to have started this panic, and had even uncovered the names of "known homosexuals" in the State Department, he recused himself from all hearings involving gays in government and stopped talking about it altogether. It was bigger than him. Bigger than the Red Scare. And it lasted for longer.

But the sodomy regime and the panic fed off each other and led Americans to believe homosexuality was a real threat in government and in life. This led to more enforcement. The cycle kept repeating.

In the 60s and 70s, with sexual freedom discussed widely and openly, these laws ceased being enforced outside of the South, even though many remained in place.

And then came AIDS. I don't want to blame AIDS by itself for the decision in that case but it played a huge part of it. It was the same concept as in the 1950s: a bunch of people learned something new about people and they panicked and wanted to enforce a regime against it, in an attempt to mandate heterosexual behavior and outlaw being gay. It has to be viewed through the history of our government and police trying to enforce gender and racial norms and doing everything they can to block anything seen as abnormal, and it should be known that the courts largely complied with all of this, just as it did regarding the regime of racism and white supremacy for most of our history.

In 1982 amidst all of this, Michael Hardwick was a bartender at a gay bar. He had a drink after work and threw it in the trash outside. He was still cited for "public drinking." Hardwick went to the court house to pay his fine but the warrant stayed in place. Then the police decided to go into his home unannounced to issue the warrant. Hardwick was seen in his own bedroom engaged in oral sex with a guy. Under Georgia law, "sodomy" involved members of the same or opposite sex, and he asked for a ruling that the law was unconstitutional.

The case made it to the Supreme Court, as Bowers v. Hardwick, challenging the ban on sodomy as an invasion of the privacy rights that were found in Griswold, Eisenstadt and other privacy-related cases.

In a 5-4 decision, the Supreme Court ruled that there was no right to "homosexual sodomy" (in the privacy of one's own home) and that convictions under the law can stand.

And that one phrase, more than anything, decided the whole majority opinion:

our disagreement with the Court of Appeals and with respondent that the Court's prior cases have construed the Constitution to confer a right of privacy that extends to homosexual sodomy and, for all intents and purposes, have decided this case.

From the beginning, it was an anti-gay decision, and explicitly so. As I noted earlier, the Georgia law in question wasn't even a ban on homosexuality or gay sex, but a ban on sodomy between opposite sex or same sex pairings. Construing the opinion to be based on simply whether or not Americans have a right to same-sex sexual activity in this way is hateful on purpose.

In Justice Blackmun's dissent (which was written by a young Pam Karlan) he notes this fact in the opening paragraph:

This case is no more about "a fundamental right to engage in homosexual sodomy," as the Court purports to declare, ante at 191, than Stanley v. Georgia, 394 U.S. 557 (1969), was about a fundamental right to watch obscene movies, or Katz v. United States, 389 U.S. 347 (1967), was about a fundamental right to place interstate bets from a telephone booth. Rather, this case is about "the most comprehensive of rights and the right most valued by civilized men," namely, "the right to be let alone." Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).

Blackmun's dissent notices the homophobia and the attempt to justify the decision with homophobic rhetoric, accusing the majority of being obsessed with homosexuality, "First, the Court's almost obsessive focus on homosexual activity is particularly hard to justify in light of the broad language Georgia has used."

A few lines down in the majority's opinion, Justice White refers to the "claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case." Really? "acts of sodomy"? The case is about the right of privacy for gays and lesbians to engage in intimate conduct in their own homes without government interference. Not only does the reference to "acts of sodomy" seem to misjudge the whole idea of homosexuality (it's not just that everyone is heterosexual and some people engage in unconventional behavior, but there really are gay people and that type of sexual intimacy is part of their makeup) but it spins the whole case into a discussion with Biblical connotations.

And then comes the incredibly dismissive tone which pervades the majority opinion. For instance, Justice White says "Precedent aside, however, respondent would have us announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do."

There are also lies and misuse of history and precedent. And the lies are plentiful and damaging to the decision. For instance, "Proscriptions against that conduct have ancient roots." "That conduct" of course is "gay people engaging in intimate activity within their own home." Putting aside the fact that the decision shouldn't even be based specifically on gay sex, proscriptions against that conduct do not have ancient roots. And proscriptions against what the Court might have termed sodomy didn't even have ancient roots in the sense that bans were enforced over centuries. These regimes designed to hide marginalized groups from society are trotted out and improved upon when government feels like it, not as a serious attempt to ban that "conduct" over time.

He then launches into a "history" of sodomy laws, which is completely refuted by the evidence documented and linked here.

Importantly, though, Blackmun's dissent tells us that Georgia is, in fact, using the law as an attempt to enforce the anti-homosexuality regime and not in a way that matches with the supposed "history" of fair sodomy laws: "Michael Hardwick's standing may rest in significant part on Georgia's apparent willingness to enforce against homosexuals a law it seems not to have any desire to enforce against heterosexuals."

And then, there's the most offensive, dismissive and horribly backwards sentence I've read in any decision I can think of:

Against this background, to claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious.

The right for gays to engage in private sexual conduct is "at best, facetious." The United States Supreme Court said this in a decision two years after I was born. Truly, it's frightening to see the depths to which fear of gay people can lead to a strong attempt to uphold a system that was made specifically to harm a minority class. And this was said in a decision where a cop went into someone's bedroom to charge them with this crime. You often hear about how 'the government shouldn't be in anyone's bedroom' - well, it was. And it won. All to make sure "homosexual" sex remained stigmatized.

And what anti-gay opinion is complete without the slippery slope argument?

And if respondent's submission is limited to the voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct [p196] while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road.

Yes yes, if you allow gays to experience sexual intimacy free from government intrusion, adulterous rabbits will go on the attack.

The majority opinion closes on the note that traditional morality is, in fact, a fine basis to uphold the ban:

Even if the conduct at issue here is not a fundamental right, respondent asserts that there must be a rational basis for the law, and that there is none in this case other than the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable. This is said to be an inadequate rationale to support the law. The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed. Even respondent makes no such claim, but insists that majority sentiments about the morality of homosexuality should be declared inadequate. We do not agree, and are unpersuaded that the sodomy laws of some 25 States should be invalidated on this basis.

So according to the United States Supreme Court majority in 1986, in an opinion written by a Democratic appointee, it is okay for the government to send people into someone's bedroom and arrest and try them for a crime if they are having consensual sex, for the person to get convicted and receive jail time or worse.

And I haven't even gotten to Chief Justice Burger's concurrence.

He says:

in constitutional terms, there is no such thing as a fundamental right to commit homosexual sodomy.

He said "commit" sodomy. Makes it sound like murder or burglary or something.

Touching on the religious basis for sodomy laws, he says, "Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards." And then, "To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching."

Yes folks, the Bible allows the government to come into your homes and round you up for sexual activity. And the Bible conveniently wants to uphold an entrenched system of anti-homosexuality because those types of laws will promote heterosexual moral values.

Justice Stevens' dissent dispenses with this idea:

Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.

Society has every right to encourage its individual members to follow particular traditions in expressing affection for one another and in gratifying their personal desires. It, of course, may prohibit an individual from imposing his will on another to satisfy his own selfish interests. It also may prevent an individual from interfering with, or violating, a legally sanctioned and protected relationship, such as marriage. And it may explain the relative advantages and disadvantages of different forms of intimate expression. But when individual married couples are isolated from observation by others, the way in which they voluntarily choose to conduct their intimate relations is a matter for them -- not the [p218] State -- to decide. [n10] The essential "liberty" that animated the development of the law in cases like Griswold, Eisenstadt, and Carey surely embraces the right to engage in nonreproductive sexual conduct that others may consider offensive or immoral.

And Stevens uses reasoning that later appeared in Romer v. Evans and then in 2003 in the decision which overturned Bowers:

A policy of selective application must be supported by a neutral and legitimate interest -- something more substantial than a habitual dislike for, or ignorance about, the disfavored group. Neither the State nor the Court has identified any such interest in this case. The Court has posited as a justification for the Georgia statute "the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable."

And Blackmun's dissent provides clarity that the majority lacks:

Our cases long have recognized that the Constitution embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government.

We protect those rights not because they contribute, in some direct and material way, to the general public welfare, but because they form so central a part of an individual's life. "[T]he concept of privacy embodies the ‘moral fact that a person belongs to himself, and not others nor to society as a whole.'" Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. at 777, n. 5 (STEVENS, J., concurring), quoting Fried, Correspondence, 6 Phil. & Pub.Affairs 288-289 (1977).

And we protect the family because it contributes so powerfully to the happiness of individuals, not because of a preference for stereotypical households. Cf. Moore v. East Cleveland, 431 U.S. at 500-506 (plurality opinion). The Court recognized in Roberts, 468 U.S. at 619, that the "ability independently to define one's identity that is central to any concept of liberty" cannot truly be exercised in a vacuum; we all depend on the "emotional enrichment from close ties with others." Ibid.

Only the most willful blindness could obscure the fact that sexual intimacy is "a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality," Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63 (1973); see also Carey v. Population Services International, 431 U.S. 678, 685 (1977). The fact that individuals define themselves in a significant way through their intimate sexual relationships with others suggests, in a Nation as diverse as ours, that there may be many "right" ways of conducting those relationships, and that much of the richness of a relationship will come from the freedom an individual has to choose the form and nature of these intensely personal bonds. See Karst, The Freedom of Intimate Association, 89 Yale L.J. 624, 637 (1980); cf. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Roe v. Wade, 410 U.S. at 153.

Justices Blackmun and Stevens filed separate dissents concluding that Bowers was incorrect, offensive, misleading and insulting to gays and lesbians. Indeed Blackmun's dissent ended with a plea to reconsider the holding:

I can only hope that here, too, the Court soon will reconsider its analysis and conclude that depriving individuals of the right to choose for themselves how to conduct their intimate relationships poses a far greater threat to the values most deeply rooted in our Nation's history than tolerance of nonconformity could ever do. Because I think the Court today betrays those values, I dissent.

Blackmun's and Stevens' dissents are masterful and clear and relevant today. They both provided the arguments for 2003's decision finally overturning Bowers in Lawrence v. Texas.

Originally posted to indiemcemopants on Thu Jun 30, 2011 at 01:05 PM PDT.

Also republished by Milk Men And Women.

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Comment Preferences

  •  My favorite line from Lawrence: (30+ / 0-)
    Bowers was not correct when it was decided, and it is not correct today.

    Preach it.  

    Great diary, indie.

    Saint, n. A dead sinner revised and edited. - Ambrose Bierce

    by pico on Thu Jun 30, 2011 at 01:18:49 PM PDT

    •  Thanks, and fun (11+ / 0-)

      trivia: Justice O'Connor, the "swing vote", was in the majority for Bowers and filed a concurring opinion in Lawrence. She would have struck down the sodomy law at issue in Lawrence WITHOUT overturning Bowers, based on the idea that the law didn't criminalize both same sex and opposite sex sodomy.

      And then in Lawrence the opinion was written by Justice Kennedy, the conservative.

      Kind of scary: the supposed swing-vote was more far right than the far right Justice Kennedy is. At least on social issues.

      "I will never compromise on my commitment to equal rights for all LGBT Americans." - President Obama, 2/28/08

      by indiemcemopants on Thu Jun 30, 2011 at 01:22:26 PM PDT

      [ Parent ]

      •  It's a little more complicated than that (9+ / 0-)

        You can take a Substantive Due Process and/or an Equal Protection path to deciding Lawrence favorably.  O'Connor took an Equal Protection path, which is in at least in some ways superior.  But that's a long, long discussion.

        Great reminder of the sinkhole from which we've been emerging.  T&R'd.

        To protect the Latino "community of interest" in redistricting Orange County, Santa Ana, eastern Garden Grove, and central Anaheim must be in the same legislative districts.

        by Seneca Doane on Thu Jun 30, 2011 at 01:58:57 PM PDT

        [ Parent ]

    •  And remember... (2+ / 0-)
      Recommended by:
      kyril, pico

      that line was written by Kennedy.  He's the current swing vote.  That's why I think that if Prop 8 goes to SCOTUS, we win, and win big.

      Minority rights should never be subject to majority vote.

      by lostboyjim on Thu Jun 30, 2011 at 04:35:06 PM PDT

      [ Parent ]

  •  Dr. Bachmann's talk of "disciplining" makes me (8+ / 0-)

    wonder if he sees criminal prosecution as a valid deterrent for the "barbarous" same sex behavior.  

    I assume that if pressed, Bachmann would say something about letting voters decide, etc., since anything that comes out of the Griswold line of privacy cases is something they won't tolerate.

    Avg. Medicaid cost to New Jersey: $1936 per child per year. Avg cost of helicopter commute for Governor: $2300 per hour. Guess which one Christie wants to cut back on?

    by Inland on Thu Jun 30, 2011 at 01:20:44 PM PDT

  •  Unlike you, young-un, I remember that day. (17+ / 0-)

    It sucked. I remember I was dating a guy who was kinda conservative. (Not Repiblican, but it was the 80s, in Michigan everyone was kind of conservative by my current 2011 standard in NYC.)

    I remember being horrified. And I remember him trying to explain or rationalize the decision--as a gay man.

    I think in some ways we have an instinct to do so because the cold reality that our government hates us and will use any tool at it's disposal to marginalize and stigmatize us is just too awful to comprehend, or live with.  

    We laud the court for Brown v. Ed, Roe v. Wade and other milestones, and like to think it is a place where Justice is found. We hate to think progress is not a linear process, but it is not.

    But as we saw by the reversal, the arc of the universe is just, ultimately. Hopefully our route to marriage equality will not be frustrated by a similar circuitous detour. But it may, and we'll have to keep the faith.

    Is the LGBT community inclusive enough to embrace the glitter-dispersal impaired? Discuss.

    by Scott Wooledge on Thu Jun 30, 2011 at 01:24:05 PM PDT

  •  Love a good history lesson. (10+ / 0-)

    This is well-written, well-researched, and well-timed.  

    Thanks.

  •  Powell was the 5th vote for the majority (16+ / 0-)

    A few years later, he apologized for his vote; he seemed bewildered that his vote could have had such an impact on the community.  From wiki:

    It has been argued that Powell's decision to uphold the law was influenced by the fact that he believed he had never known any homosexuals, unaware that one of his own law clerks was gay.[10] In 1990, three years after retiring from the Court, Powell told a group of New York University law students that he considered his opinion in Bowers was an error. "I do think it was inconsistent in a general way with Roe. When I had the opportunity to reread the opinions a few months later I thought the dissent had the better of the arguments."[11] However, Powell believed that the case was one of little importance and spent only thirty minutes thinking about it.[11]

    Personally, I think he should have never said anything because it's worse to think that something so significant could have been given the same amount of consideration that one might spend about where to eat dinner.

    And, Bowers wasn't just a bad decision; it was used by courts all over the place to justify other homophobia.

  •  Very good in-depth explanation of this one, indie. (6+ / 0-)

    I was quite aware of it at the time, of course, but didn't know the details of the decision other than it was against privacy in your own home.

    Thanks very much for education.

  •  Very well done, indie. (9+ / 0-)

    Just adding one delicious coda to this story:

    The "Bowers" in this case was Georgia Attorney General Mike Bowers, at the time a Democrat (and eternally an asshole). He was not only known for this anti-gay case, but also another, Shahar v. Bowers, where he fired an Assistant Attorney General he had just hired because she was (wait for it)...a lesbian who wanted to marry her partner. His reasoning was that her lesbianism would make it impossible for her to enforce the sodomy law. The 11th Circuit upheld him rescinding her hiring offer.

    During the 90s, like so many civil rights-hating jerks in the good ol' boy network in Georgia, he switched to the GOP. In 1997, he began a run for Governor to replace the term-limited Zell Miller (who, at the time, was insanely popular, and not nearly as publicly insane as he later became in the Senate). During the campaign, it came out that Bowers had been having a salacious affair for the previous decade. And during this affair, like all good affairs, he and his mistress had engaged in--surprise, surprise!--sodomy. Lots of it.

    He still managed to pull 40% of the vote in the GOP primary, and that same year the Georgia Supreme Court overturned the sodomy statute.

    ‎"Our greatest asset as advocates is a deep cognizance of our own ignorance, plus a willingness to do something about it." -Joseph Mitchell Kaye, 1966.

    by JR on Thu Jun 30, 2011 at 01:32:02 PM PDT

  •  Nice diary. (9+ / 0-)

    I remember when Lawrence came down.  I was getting ready for college.  While I knew I was gay, I didn't quite understand it's impact at the time.

    I sure do now.

    One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!) SSP: wmlawman

    by AUBoy2007 on Thu Jun 30, 2011 at 01:33:43 PM PDT

    •  I was in high school. (8+ / 0-)

      You have to picture this, because it really is as funny as it sounds: I was in a high school in a small conservative town in south Alabama. I happened to be in my senior year and we had to take a Government class that year.

      So, I had this crazy libertarian teacher I disagreed with on most issues (he kept calling April 15th Government Theft Day, etc.) but I would always argue with him in class. In fact it was the only class in which I participated. Anyway, so, we had a class discussion about sodomy and the virtues of it and whether people should have it or not and whether it should be legal or not.

      My teacher pretty much held the position that if he wanted to have "anal sex" (his words) with his wife that's his business and the government should not say anything. Therefore he said sodomy bans (even when used against gays) are unconstitutional.

      Then he got complaints from parents.

      "I will never compromise on my commitment to equal rights for all LGBT Americans." - President Obama, 2/28/08

      by indiemcemopants on Thu Jun 30, 2011 at 01:42:12 PM PDT

      [ Parent ]

      •  Hahaha. (3+ / 0-)
        Recommended by:
        indiemcemopants, craigkg, kyril

        Oh my.  Awesome for a high school teacher, though I can totally imagine the complaints.

        I cannot imagine any of my high school teachers mentioning it.  It was, however, how we opened my criminal law class in law school.

        One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!) SSP: wmlawman

        by AUBoy2007 on Thu Jun 30, 2011 at 01:51:32 PM PDT

        [ Parent ]

      •  I was already an adult, living in DC (4+ / 0-)

        At the time, DC's local government kept repealing its sodomy law and Congress kept reinstating it. The only opening left to local authorities was to absolutely refuse to prosecute anyone for sodomy.

        I moved to California shortly after Bowers was handed down. Not because of the decision or because CA had already gotten rid of its sodomy laws, but it certainly helped.

    •  I was just beginning to date, and (2+ / 0-)
      Recommended by:
      kyril, AUBoy2007

      my home base (I was a college student) was one of the states that still criminalized sodomy and still pursued criminal charges.  So I definitely remember that day.

      Saint, n. A dead sinner revised and edited. - Ambrose Bierce

      by pico on Thu Jun 30, 2011 at 04:15:32 PM PDT

      [ Parent ]

  •  For the scoop on the /real/ sin of Sodom: (6+ / 0-)
    Ezekiel 16.49-50

    This was the guilt of your sister Sodom: she and her daughters had pride, excess of food, and prosperous ease, but did not aid the poor and needy. They were haughty, and did abominable things before me; therefore I removed them when I saw it.

    If the fundamentalists and corporatists gave up the sin of Sodom this country would be quite different!

    Is it true? Is it kind? Is it necessary? . . . and respect the dignity of every human being.

    by Wee Mama on Thu Jun 30, 2011 at 01:38:16 PM PDT

    •  If you ask me (4+ / 0-)
      Recommended by:
      Wee Mama, Clarknt67, craigkg, kyril

      the entirety of the interpretation of the Bible's stance on homosexuality is incorrect. I have read a lot of scholars who have said the Leviticus prohibition against it was designed to stop men from having sex with other men for fun when they were married to women. (It involved ceremonies of some sort where dudes would get together for that, or something.)

      And there are even OTHER theories.

      So the whole idea that the Bible is against gay people and gay relationships is far from concrete.

      "I will never compromise on my commitment to equal rights for all LGBT Americans." - President Obama, 2/28/08

      by indiemcemopants on Thu Jun 30, 2011 at 01:47:27 PM PDT

      [ Parent ]

      •  I agree entirely. (3+ / 0-)
        Recommended by:
        indiemcemopants, Clarknt67, kyril

        We did a bible study on just that (what if anything does the bible say about homosexuality) on Sunday and I plan to do a diary sharing those materials (now that Google Sites are behaving again). Marriage equality is the best reading, as far as I can see. It was part of a series looking at how tradition changes.

        The Leviticus passages were most likely referring to male temple prostitutes (though there is another reading that is plausible, that two guys shouldn't do it in a woman's bed because women have cooties or are cool or something).

        Is it true? Is it kind? Is it necessary? . . . and respect the dignity of every human being.

        by Wee Mama on Thu Jun 30, 2011 at 02:10:59 PM PDT

        [ Parent ]

      •  A variety of interpretations exists (3+ / 0-)
        Recommended by:
        indiemcemopants, Wee Mama, kyril

        One is of course the "standard" interpretation that men don't get to have sex with other men.

        The second interpretation is that STRAIGHT men don't get to have sex with other men since it is contrary to their nature. Which likewise means that for a gay man to be obliged to have sex with a woman would be just as much of an abomination (I suppose that means that if one is bisexual, one is entirely off the hook).

        The third interpretation is that the prohibition contained in Leviticus applies to sexual contact between men and  temple prostitutes (boys or men or perhaps, it isn't clear) with whom ritualized sexual contact was part of the rite of some competing religions.

        Still another interpretation of Leviticus is that it applies strictly to actual intercourse between two men, leaving other forms of sexual expression as acceptable.

        And finally, there is the idea that since the injunction references "LYING with a man as one LIES with a woman" it is okay to have sex with another man as long as you're both standing up. (No, I'm not kidding.)

  •  Thanks for the excellent diary, indie (9+ / 0-)

    We all had a great deal of hope that Bowers v. Hardwick would be ruled in our favor and God knows we needed good news at the height of the AIDS crisis. We were crushed when the Court ruled as it did. It appeared that we would never see the end of the marginilization, the hate. Romer v. Evans and Lawrence v. Texas would renew our faith in the justice system enough for us to pursue things like Perry v. Schwarzenegger, but we cannot forget that day 25 years ago when a part of our humanity was taken from us.

    •  Agreed, it's an issue of (5+ / 0-)
      Recommended by:
      EdSF, craigkg, sfbob, Zooey Glass, kyril

      "look what happened before, it can happen again." All a court really has to do is to just not care about whether gays have the liberties other people have. Either that, or some new moral panic which makes everyone fear gays again.

      The lesson is really that it's easy for our system to turn on us whenever it feels like it, and that there is a regime in place to facilitate that. And this is a system we have to rely on for our rights. It's fucking scary, even WITH the advancements.

      "I will never compromise on my commitment to equal rights for all LGBT Americans." - President Obama, 2/28/08

      by indiemcemopants on Thu Jun 30, 2011 at 01:57:19 PM PDT

      [ Parent ]

    •  It's worth noting too (8+ / 0-)

      Perry V. Schwarzenegger was NOT an officially Gay, Inc approved action. The major legal forces in our community were not inclined to take the case on, precisely out of fear the system would screw us as it did Hardwick.

      It took too straight guys, maybe with a little more faith in the system, to fight for what's right.

      The case is clearly in good hands, so it's all good.

      Is the LGBT community inclusive enough to embrace the glitter-dispersal impaired? Discuss.

      by Scott Wooledge on Thu Jun 30, 2011 at 02:13:01 PM PDT

      [ Parent ]

      •  Good point. (6+ / 0-)

        Kind of forget about that now.

        But yeah, it's in pretty damn good hands.  Maybe even better than Gay, Inc.'s hands considering who these two are and their backgrounds.

        One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!) SSP: wmlawman

        by AUBoy2007 on Thu Jun 30, 2011 at 02:16:37 PM PDT

        [ Parent ]

      •  I do doubt its (4+ / 0-)
        Recommended by:
        EdSF, craigkg, sfbob, kyril

        ultimate impact outside California though. Unless SCOTUS decides to go against their trend and randomly expand standing for this issue.

        "I will never compromise on my commitment to equal rights for all LGBT Americans." - President Obama, 2/28/08

        by indiemcemopants on Thu Jun 30, 2011 at 02:18:09 PM PDT

        [ Parent ]

        •  We'll see. (8+ / 0-)

          Such prognostications are above my pay grade.

          I think Olsen and Boies took the case because they saw the potential for a sweeping landmark decision. So it strikes me within the realm of possibility.

          But the standing issue at appeal may thwart that. Not something they could have foreseen easily.

          Is the LGBT community inclusive enough to embrace the glitter-dispersal impaired? Discuss.

          by Scott Wooledge on Thu Jun 30, 2011 at 02:30:37 PM PDT

          [ Parent ]

          •  I'm not so sure they didn't consider it (2+ / 0-)
            Recommended by:
            indiemcemopants, kyril

            They're pretty thorough. I can't imagine them not viewing the issue of standing at the point of an appeal. In fact, even having it be questioned would seem to boost their chance of at least getting a win on Prop 8 at the state level.

            I'd be more inclined to believe they took the case under the supposition that the law didn't stand a chance if it were actually put on trial and that, even if the ruling applied only to the State of California because lack of standing by the defender-appellants kept it from advancing further, it would provide an enormous precedent. After all, if the court had ruled against the plaintiffs, there'd be no question as to their right to continue appealing, while a finding for the plaintiffs might well come to an end at the circuit court level which would still provide the minimum relief the plaintiffs are seeking.

            •  Well, I am sure they considered it. (1+ / 0-)
              Recommended by:
              kyril

              But also considered that had Harris lost (which she almost did) the standing issue would not be inhibiting the path to the SCOTUS.

              Is the LGBT community inclusive enough to embrace the glitter-dispersal impaired? Discuss.

              by Scott Wooledge on Thu Jun 30, 2011 at 04:11:37 PM PDT

              [ Parent ]

              •  We don't know that. (2+ / 0-)
                Recommended by:
                Clarknt67, sfbob

                By the time the other guy (forgetting his name) would have been sworn in, the case had already been heard at the 9th Circuit.

                Would he have been allowed to come in at that point?  Maybe not.  In fact, probably not.

                One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!) SSP: wmlawman

                by AUBoy2007 on Thu Jun 30, 2011 at 05:02:59 PM PDT

                [ Parent ]

                •  I am sure he would have tried. (0+ / 0-)

                  He said so in the campaign. Would the Justices bent over backward to look fair? Who knows?

                  Is the LGBT community inclusive enough to embrace the glitter-dispersal impaired? Discuss.

                  by Scott Wooledge on Thu Jun 30, 2011 at 07:10:22 PM PDT

                  [ Parent ]

                  •  Sorry but no. (1+ / 0-)
                    Recommended by:
                    Clarknt67

                    Not this time.  The failure to file a timely notice of appeal is jurisdictional.  The state failed to file an appeal from the judgment.  At that point, the judgment became final with respect to the state, and the Ninth Circuit could not have entertained an appeal filed beyond the appeal period.

                    Nor do I think the state would have been permitted to intervene on appeal.  That would basically be allowing an untimely notice of appeal through the back door.

                    The most a Republican AG could have hoped for was to file an amicus brief.  But he'd have been in the supremely awkward position of contradicting the filing the state had made below.  

                    "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

                    by FogCityJohn on Thu Jun 30, 2011 at 09:56:21 PM PDT

                    [ Parent ]

                •  Definitely not (1+ / 0-)
                  Recommended by:
                  AUBoy2007

                  Remember your appellate procedure, young lawyer.  The filing of a timely notice of appeal is jurisdictional.  Without a timely notice of appeal, the Court of Appeals literally has no power to hear a party's case.

                  "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

                  by FogCityJohn on Thu Jun 30, 2011 at 09:57:55 PM PDT

                  [ Parent ]

      •  After the CA supreme Court (2+ / 0-)
        Recommended by:
        indiemcemopants, sfbob

        upheld Prop H8 in May 2009, I was hurting bad but I remembered Romer v. Evansand the glimmer of hope that the Federal Court sysytem was beginning to view us a class of citizens unjustly discriminated against. I embraced AFER's annoucement of action and began to see just how poorly Gay, Inc. was serving our community in opposing it. I had gone to One Struggle, One Fight ( a precursor to GetEqual)meetings and actions here in SF and realized that in the post-PropH8 world, it is going to take everything, courts, legislatures, ballots, the streets to win this fight. In the meantime, Olson and Boies, Judge Walker, Andrew Cuomo and the NYS legislature, Dan Choi and GetEqual have begun to show us the way!

  •  Bowers' corrupting influence on our jurisprudence (5+ / 0-)

    Despite the decision being based solely upon the Due Process Clause claim, Bowers v Hardwick became a cancer upon equal protection jurisprudence, even after Romer v Evans tried to level the playing field. Any time an equal protection claim was made, all any court had to do was essentially write "It is permissible to discriminate against homosexuals since the behavior defining them can be made criminal. Bowers v Hardwick." Romer v Evans was at least meant to require some analysis be done in equal protection claims, but too many courts basically ignored it in favor of the more well known Bowers case. See e.g. Equality Foundation of Greater Cincinnati vs the City of Cincinnati. I think that is one of the big reasons that Anthony Kennedy decided to go the Due Process route in Lawrence v Texas instead of the equal protection one favored by O'Connor. Romer was his opinion and it was basically being ignored. He knew Bowers had become a cancer in our jurisprudence and the one way to cure the patient was to cut the tumor our...Bowers had to go and that's why I think the normally very cautious and minimalist Kennedy was so willing to take the more radical step in Lawrence.

    "So it was OK to waterboard a guy over 80 times but God forbid the guy who could understand what that prick was saying has a boyfriend."--Jon Stewart

    by craigkg on Thu Jun 30, 2011 at 02:20:37 PM PDT

    •  I read an article (6+ / 0-)

      that I tried to find and link in the diary itself, about the Romer decision, which said that Kennedy basically begged to take the case because he was pissed off at the Colorado amendment and how deliberately they were trying to attack gay people just for being gay.

      So it does seem like he'd be very invested in that decision.

      "I will never compromise on my commitment to equal rights for all LGBT Americans." - President Obama, 2/28/08

      by indiemcemopants on Thu Jun 30, 2011 at 02:25:48 PM PDT

      [ Parent ]

  •  I'm almost disappointed that Bowers was overturned (1+ / 0-)
    Recommended by:
    kyril

    because this:

    The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.
    could have been used to support a law making it illegal to vote Republican. Pity.

    </snark>

    Let us all have the strength to see the humanity in our enemies, and the courage to let them see the humanity in ourselves.

    by Nowhere Man on Thu Jun 30, 2011 at 02:33:04 PM PDT

  •  i remember a comic that came out after that (3+ / 0-)
    Recommended by:
    indiemcemopants, AUBoy2007, kyril

    which depicted the 5 majority judges standing outside someone's bedroom waving at them.

    my friends, my boyfriend and i were all just appalled that a decision like that would have been reached in the highest court of the land.  it made absolutely no sense that people's private lives could be legislated in such a manner.

    hope springs eternal and DAMN is she getting tired!

    by alguien on Thu Jun 30, 2011 at 02:53:19 PM PDT

  •  I've always kept a copy (7+ / 0-)

    of the NYTimes Editorial that followed that decision.  It's timeless.

    July 31, 1986
    CONTRADICTIONS

    When the Supreme Court recently upheld the right of the states to regulate private sexual conduct, it inflamed people who believe in privacy, gratified people who dislike homosexuals - and gave new force to some striking contradictions in American attitudes. These can be framed as questions: Why is it that the people most outraged when government puts its hand in your pocket for taxes are often the people quickest to applaud when government sticks its nose into your bedroom?

    Why is it that the people who believe most fiercely in capital punishment are often the same people who, proclaiming the right to life, most bitterly oppose abortion?

    Why is it that the people most opposed to giving welfare assistance to distraught young mothers are often those who fight hardest against providing sex education and contraception to poor teen-agers?

    The answer in each case is that these may not be contradictions at all. For what they demonstrate best is not inconsistency about life but consistency about punishment. In this view, crime absolutely must not pay. The state should kill murderers, no matter that, oh dear, it sometimes kills the wrong man. Sin must not pay. The careless teen-age girl should bear the badge and burden of her shame, no matter how little she really knows about sex and no matter how incapable she, a child, is of raising a baby. To those of this Puritan persuasion, government has a sober duty. Far from getting off people's backs, it should impose a strict moral harness.

    Others of us are left to believe that it is barbarous for the state, prone to error, to kill. We are left to believe - to know - that thousands of babies are conceived out of pathetic ignorance or a misguided hunger to be taken seriously. And when it comes to sexual conduct between consenting adults in their own homes - well, if that's not privacy, what is?

    Government often must legislate and enforce morality, but whenever it does, it tilts inescapably toward conformity and vengeance. Yet when the very definition of life, liberty and happiness is in dispute, it is government's duty to tilt instead toward diversity and compassion.


    I used to be Snow White...but I drifted.

    by john07801 on Thu Jun 30, 2011 at 02:53:24 PM PDT

  •  481 of us were busted on the steps of the... (2+ / 0-)
    Recommended by:
    indiemcemopants, FogCityJohn

    ...US Supreme Court 24 years ago in a nonviolent direct action, a year after the decision, in protest of Bowers v Hardwick.

    (Don't quote me on the 481 number, but it does somehow stick in my mind.)

    I was released 48 hours later, in the middle of the night.

    Since I didn't know anybody in DC, or even where the hell I was, I looked up the telephone number of the local Catholic Worker House and called them and told them what had happened.

    They told me that they knew exactly where I had been released, and just to wait there until they could send somebody to pick me up.

    I spent the night at the Catholic Worker House in DC before taking a train back to Baltimore the next day. (I was a grad student at JHU at the time.)

    "If I can't dance, then I don't want to be in your revolution"--Emma Goldman

    by ehrenfeucht games on Thu Jun 30, 2011 at 07:00:40 PM PDT

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