Did Gays Get All They Want from the Supreme Court? (Really?)

Mr. Allen is an independent historian and a writer for the History News Service.

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When the Supreme Court ruled recently in Lawrence v. Texas that anti-sodomy laws were unconstitutional, gay rights activists hailed the decision as a giant leap forward for their cause. Both activists and news commentators have compared this ruling to Brown v. Board of Education in its potential impact. But is this a valid comparison?

The Brown ruling of 1954 was one of the truly great Supreme Court decisions of the last century. In it, the justices held that the equal protection clause of the 14th Amendment applied to blacks as well as whites. Their decision overturned the 1896 Supreme Court ruling in Plessy v. Ferguson that said the Constitution allowed for segregation. The Plessy case created the doctrine of "separate but equal" accommodations for blacks and whites.

By the time of the Brown decision, it was obvious that separate accommodations for blacks were hardly equal to those of whites. The Supreme Court in Brown went beyond simply acknowledging that existing separate accommodations were unequal and ruled that separate treatment under the law is inherently unconstitutional.

So did the Supreme Court render a similar decision in Lawrence v. Texas, ruling that unequal treatment of gays is unconstitutional? The justices were asked to dismiss the sodomy convictions of John Lawrence and Tyrone Garner on the basis of equal protection, but they chose to rule on the grounds that the two men's right to privacy had been violated. While this ruling was good news for those who support the right to privacy, such as abortion rights activists, the decision was not a complete success for gays.

In basing their ruling on the right to privacy rather than equal protection, the Supreme Court created a precedent that is more akin to the Plessy decision than to its ruling in Brown v. Board of Education. The Lawrence decision does not give gays all of the same rights as straight Americans, and it theoretically leaves the door open to certain types of discrimination.

This is actually a step backward for the Supreme Court. In 1996, in Romer v. Evans, the justices held that certain types of discrimination against gays -- in housing and employment, for example -- violate the equal protection clause. While the court had the opportunity in Lawrence v. Texas to extend that protection to sexual matters, the justices chose not to do so.

Lawrence v. Texas puts gays into a position like that created for blacks by Plessy v. Ferguson. While they are treated separately, they are by no means considered equals in all cases. In several states, gays and lesbians are not allowed to adopt children, and homosexuality has been successfully used as grounds to terminate biological parental rights. None of the fifty states recognizes gay marriages, although that may change in Massachusetts later this year. Vermont did create the category of "civil union," which gives gay couples who wish to have their relationship officially recognized the same legal rights as married couples. But a civil union is not the same thing as a gay marriage: Vermont's law is clearly a case of "separate but equal" treatment.

Nonetheless, things certainly are looking up for gay rights in the United States. Because it did not grant gays full equal protection, Lawrence v. Texas may not have gone as far as it could have, but it is still a significant advance. The fact that Canada and Great Britain may soon legalize gay marriage puts a certain amount of moral pressure on the United States to do the same. Even Wal-Mart, which is not known for advancing liberal causes, recently added protection for gays and lesbians to the company's anti-discrimination policies.

It took 58 years for the Supreme Court to advance from Plessy v. Ferguson's "separate but equal" doctrine to the equal protection granted by Brown v. Board of Education. The question is, will it take that long again?

This piece was distributed for non-exclusive use by the History News Service, an informal syndicate of professional historians who seek to improve the public's understanding of current events by setting these events in their historical contexts. The article may be republished as long as both the author and the History News Service are clearly credited.

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Vivien Sandlund - 7/24/2003

I absolutely agree with Phil Collins' assessment of the majority ruling in Lawrence v. Texas, and I respectfully disagree with Stephen Allen. I think it was much better for gay people that the majority struck down the decision in Bowers v. Hardwick clearly and decisively by overruling it directly, on the basis of the right to privacy. The majority in Bowers had ruled that there is no right to privacy where homosexual conduct is concerned. This the Supreme Court needed to wipe away.

That the majority did not rule on the basis of the plaintiffs' equal protection claim is not a setback for gay people or for the struggle for equal treatment for gay people. The ruling in Romer v. Evans has already clearly established that the equal protection clause of the 14th amendment does apply to gay people.

Yes, it would be wonderful to have gay people declared a suspect class and to have laws that discriminate on the basis of sexual orientation given heightened scrutiny under the 14th amendment rather than being subject only to the rational basis test. However, I don't think this Supreme Court was prepared to do that. They were, however, prepared to declare, decisively and clearly, that the terrible decision in Bowers v. Hardwick was wrong and is wrong. This was a great victory, and it doesn't resemble the Plessy decision at all. It is a significant step toward full equality for all of us gay and lesbian and bisexual people, and I think it is much better that the ruling struck down Bowers v. Hardwick rather than leaving it stand and relying on the equal protection argument.

Clayton E. Crame - 7/15/2003

"If I'm understanding them correctly, they are quite right that laws that make homosexual 'sodomy' illegal but that explicitly lift previous restrictions on heterosexual 'sodomy' are not deeply rooted in American history."

That may well be true, but that's not the same as claiming that the colonial laws didn't prohibit homosexual sodomy. Idaho, for example, has a traditional law. It applies to both heterosexuals, homosexuals, and bestiality. It is equivalent to the buggery statute of Henry VIII. I don't see any equivalent prohibition on heterosexual oral or anal sex in the Connecticut or Plymouth codes in front of me--although I confess that they might be somewhere that I haven't read.

Josh Greenland - 7/12/2003

Clayton, I think I see what you're saying. According to the historians (in the HNN article you URLed, http://hnn.us/articles/1539.html ):

"Sodomy laws that exclusively targeted same-sex couples, such as the statute enacted in 1973 in Texas (1973 TEX. GEN. LAWS ch. 399, §§ 1, 3), were a development of the last third of the twentieth century and reflect this historically unprecedented concern to classify and penalize homosexuals as a subordinate class of citizens."

In refuting this, you showed that there were individual statutes in the early colonial days that specifically proscribed homosexual sex, including between adults.

I think that the historians meant sodomy laws that explicitly excluded all heterosexual sex from criminalization under them. This is how I took the statement when I first read it, it's the only way it makes sense given the historical record, and I think this is how the Supreme Court took it.

Correct me if I'm wrong, but at one time every state had laws against non-coital acts between two consenting adults of all possible gender combinations. I thought the historians were referring to the relatively recent rescinding by some states (including Texas) of those laws that criminalized sex between a consenting unrelated man and woman, while keeping sex between consenting adults of the same gender illegal. If I'm understanding them correctly, they are quite right that laws that make homosexual "sodomy" illegal but that explicitly lift previous restrictions on heterosexual "sodomy" are not deeply rooted in American history.

Clayton E. Cramer - 7/11/2003

"the court took the work of historians far more seriously...."

How unfortunate that the "history" they were fed is wrong. See the discussion at http://hnn.us/articles/1539.html in the comments.

Jonathan Dresner - 7/8/2003

This piece was distributed by the History News Service, which has also distributed several of my columns. As the tag says, the purpose of HNS is to comment on current events from an historical perspective. Their editors are quite firm about maintaining the focus of the columns they distribute on the present.

This website, which has also published several of my columns outside of HNS distribution, also focuses on the present: opinions of historians about current events, breaking stories about historical research and publishing, commentaries on the state of history as a discipline and profession, and the use and abuse of history in public discourse.

If you're looking for scholarly discourse on pure historical research, this is not the place, I'm afraid. Not that the discussions are always shallow or presentist, but it certainly isn't pure.

Personally, I love it. I think history should be a part of current events discussions. I think historians should engage the public at a more accessible level in addition to talking to each other. I think historians have a perspective to provide (and a corrective to some of the overblown and simplistic references) that is valuable.

Phil Collins - 7/8/2003

Well, in one (albeit superficial) regard, Lawrence v. Texas is comparable to Brown rather than Plessy. That is: Lawrence is to Bowers v. Hardwick as Brown is to Plessy.

The problem is that had the court decided Lawrence on the basis sought by O'Connor -- equal protection of the laws cannot be denied without a 'rational basis' (the doctrine used to decide Romer v. Evans) -- the status of Bowers v. Hardwick might have been left ambiguous. Bowers was decided, that is, on the basis of the due process clause, not the equal protection clause.

The problem with Bowers, of course, is that it has given legal legitimacy to discrimination against gays well beyond private sexual conduct. In this regard, Bowers, not Lawrence, is the Plessy-esque villain, stamping both official and unofficial discrimination with the legitimacy of a Supreme Court opinion.

Hence the court was right to painstakingly refute Bowers only 17 years later. (One should note, especially, how the court took the work of historians far more seriously in Lawrence compared to its very poor and superficial reading of the history of sexual identity and sodomy laws in the 1986 opinion.)

Of course, this goes without saying that the most desirable scenario would have been for the court to decide, under the equal protection clause, that gays are a suspect, or at least quasi-suspect class, similar (respectively) to race or gender.
This would have probably had an immediate impact on gay marriage and gays in the military. (Of course, this would have required bringing Brennan, Marshall and Blackmun back from the grave ... )

John Maass - 7/8/2003

Dana--your comments do not address my point (and make you sound bitter). What I was saying is that these types of columns lean to heavily toward modern politics, and not history. You confuse the drama of current events with history, which requires thought, analysis, contextulaization and the distance to seriously undertake its study. If you "crack some books" you might be able to see this for yourself.

Dana - 7/8/2003

'nuff said. i don't know what the complaint's about; crack open a history book, and you see *nothing* but politics-past-tense. mr. allen is merely reporting history as it is occurring now.

John Maass - 7/7/2003

This piece is a lot more political than it is historical. Has the focus of this webpage changed?

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