Gay Rights and the Constitution

Gay Rights and the Constitution “I'm a supporter of gay rights. And not a closet supporter either. From the time I was a kid, I have never been able to understand attacks upon the gay community. There are so many qualities that make up a human being... by the time I get through with all the things that I really admire about people, what they do with their private parts is probably so low on the list that it is irrelevant. ”  ~Paul Newman Can the courts or the law tell the people in what way they can be intimate with their partners?

Throughout the history of the United states there has been some constitutional controversy concerning which rights we possess that are protected under the constitution. Controversy has also surrounded who the constitution protects. At one time it was said that no person of African American race was or would ever be citizens of the united states. This was changed with the Fourteenth Amendment to the constitution. This fact leads me to believe that gay rights will continue to progress even though it has been a slow moving process.

For decades there has been the issue of Gay rights and some of the courts controversial decisions have stemmed from cases regarding gay rights. A couple of these controversial cases have been of the cases the 1986 case of Bowers vs. Hardwick, and the 2003 case of Lawrence vs. Texas. All three of these case involve gay rights and virtually the rights of adult individuals to engage in sexual activities with other consenting adults of the same or opposite sex.

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Many cases have gone to the supreme court to decide the constitutionality of these issues pertaining to gay rights, Even though it is in the power of the supreme court to interpret the laws and the constitution, sometimes the Supreme Court makes the wrong decision. There was a point in time when the Supreme Court gave consent to the states to criminalize the act of adult males to engage in sexual sodomy in the privacy of their own homes. In the case of Bowers v. Hardwick the supreme court ruled against Hardwick stating that Georgia’s anti sodomy law was constitutional, however in the case of Lawrence v.

Texas the Supreme Court overturned the Bowers decision and declared that such laws are in fact unconstitutional under due process and equal protection. Today the gay community still struggles to attain the same rights as heterosexual couples, but they get closer everyday. First, at one point in time the United States Supreme Court gave the States consent to criminalize the acts of adult males to engage in sexual activities within the privacy of their own homes (Garvey, 2010). A prime example is found in the result of the case of Bowers vs.

Hardwick. In August of 1982 Atlanta, Georgia police officer Torick issued a citation for public drinking to Michael Hardwick. Hardwick a bartender had merely thrown out a beer bottle into the dumpster out side of the gay bar where he worked. The police officer processed the ticket and marked out the actual court date which was on a Tuesday and wrote in Wednesday. When Hardwick failed to appear that Tuesday an arrest warrant was issued and the police officer decided to serve the warrant personally, however Hardwick was not home.

When Hardwick came home and realized that officer Torick had been to his apartment, he went to the courthouse and paid the ticket. The arrest warrant was re-called, however officer Torick went to Hardwick’s apartment again a few weeks later to serve the warrant. When the officer got to the apartment a guest of Hardwick’s answered the door and allowed the officer into the apartment. “Officer Torick noticed that Hardwick’s door was ajar opened it further and proceeded into the room where Hardwick and a male companion were engaged in mutual consensual oral sex.

Both men were then arrested for the act of sodomy which is defined in Georgia state law as “the carnal knowledge and connection against the order of nature, by man with man, or in the same unnatural manner with woman Ga. Code, Tit. 1, Pt. 4, § 4251 (1861) (Google Scholar,2010)". After being arrested Hardwick and his partner were jailed for twelve hours before being released. At a preliminary hearing, the district attorney decided not to pursue the case unless further evidence developed (Conway, 2003).

Hardwick decided to challenge the constitutionality of his arrest because he was arrested on an invalid warrant. Hardwick filed his first suit with the federal district court, however the courts ruled against him. When Hardwick appealed with the Eleventh Circuit Court of Appeals, they agreed that “the Georgia statute violated respondent’s fundamental rights because his homosexual activity is private and intimate association that is beyond reach of state regulation” (Conway, 2003). It was the state of Georgia who appealed to the Supreme Court.

The Supreme Court granted certiorari on November 4, 1985 to review the case (Wikipedia,2010). Hardwick argued that this law infringes on his right to privacy as outlined in the Due Process clause of the Fourteenth Amendment. The legal issue presented in this case was whether or not the constitution confers a fundamental right for homosexuals to participate in sodomy (Conway, 2003). The court held that the Georgia law classified homosexual sex as illegal sodomy was valid in that there was not constitutional protection for the right to engage in homosexual sex.

Justice Byron White wrote the majority opinion answering this question. He stated that “ 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 (Google Scholar, 2010). ” The result of this decision was that it seemed as if the Supreme Court had given the States consent to criminalize the act of adult males to engage in consensual sex of any kind in the privacy of their homes. This case is an example of how sometimes the Supreme Court can make a bad decision.

Even though the Georgia Sodomy law applied to both heterosexual and homosexual persons, Justice White’s decision had been restricted to homosexuals. It took nearly fifteen years for the Supreme Court to overrule their decision in this case. Additionally, in another case the supreme court has decided that the state in fact can not make laws infringing the type of sexual acts people can have in the privacy of their homes. In 2003 the case of Lawrence v. Texas was brought to the Supreme Court. Like in Bowers v.

Hardwick, Lawrence and his partner were arrested for engaging in homosexual sodomy. The state of Texas had an anti- sodomy statute called the Homosexual Conduct Law which prohibits the engagement in deviant sexual intercourse with another individual of the same sex. A police officer entered the apartment of Lawrence under probable cause, being that a neighbor had called the police stating that a man with a gun was robbing his neighbor. The man was lying and had been harassing Lawrence. Upon entering the apartment the police officer found Lawrence and his artner violating the anti sodomy or Homosexual conduct law that the state of Texas had in place. The couple pled no contest to the charges and were convicted, however they decided to exercise their right to a new trial before a Texas Criminal Court. They asked the court to dismiss the charges claiming they were protected under the Fourteenth Amendments equal protection grounds. Lawrence claimed that the law was unconstitutional because it prohibits sodomy for homosexuals only and permits heterosexuals to engage in such activities.

The courts rejected their request and proceeded with misdemeanor charges. Lawrence’s case was argued at the Texas Fourteenth Court of Appeals and the Texas Homosexual Conduct law was initially held to be unconstitutional under the 1972 Equal Rights Amendment of the Texas state Constitution. This amendment prohibits discrimination based on sex, race, color, creed or national origin. However the full court voted for reconsideration of that decision and upheld the constitutionality of the law.

The case was then submitted to the highest appellate court in Texas, the Texas Court of Criminal Appeals but was rejected for review. The case was then filed with the U. S. Supreme Court where the Court ruled to strike down the Texas law. The court held that this law did indeed violate the due process clause of the Fourteenth Amendment of the Constitution. Also Justice Sandra Day O’Connor found that the law also violated equal protection under the constitution. The majority opinion in this case overruled the decision in Bowers v.

Hardwick along with a series of other similar laws within other states. Sometimes the courts make poor decisions, but it is comforting to know that they can overturn their bad decisions and make them right as Justice Steven's stated in the majority opinion, “Bowers was not correct when it was decided, it is not correct today and is hereby overruled (Lawrence v. Texas). ” When the laws of the united states protect sexual liberties, they do so on the grounds of our right to privacy, but it was up until 2003, Lawrence v.

Texas that the constitutional right to sexual liberty applied only to hetero sexual sex. Now that gay rights have been expanded to include sexual liberty in the privacy of their homes, the gay community still fights for their right to marriage. Some states have passed laws to allow same sex marriages. Currently only five out of the fifty states have granted same sex marriages; Connecticut, Massachusetts, Iowa, New Hampshire, Vermont and Washington D. C. California should be on this list, however the California gay community is still in battle with the state Legislature over gay marriage.

In California gay marriages were performed for a p of five months, after the California Supreme Court held that the statutes that prevented same sex marriage violated the state constitution. The same sex ban went into effect after the passing of Proposition 8, however on August 4,2010 U. S. District Chief Judge Vaughn R. Walker held that the banned same sex marriage was based on moral disapproval of gay marriage and ordered the state to stop enforcing the ban. ( Dolan & Williams, 2010).

In the Court’s opinion written by Judge Walker he referred to the ban on gay marriage as being the result of moral and religious views that same sex couples are any different that opposite sex couples. He deemed that the Proposition 8 was a violation of federal constitutional guarantees of Equal protection and due process. Unfortunately those opposed to same sex marriages have filed appeals to overturn the courts ruling yet again. California has had a long battle with the courts for their rights. In other states, there have been issues regarding the label put on same sex marriage.

In the Vermont case of Baker v. State the Vermont State Supreme Court decision merely required that the state legislature find a means of granting same sex couples the same benefits as marriage (Garlinger, 2004). In Massachusetts the Senate proposed to create a civil union status for same sex couples in place of marriage, however the courts declared that the substitution of civil union for civil marriage was not acceptable. They declared that the choice of language “reflects a demonstrable assigning of same-sex, largely homosexual couples to a second class status (Garlinger,2004). The people of the states will continue to fight for what they believe is right. The gay community for equal rights in all aspects of their lives and relationships, and those against the gay community attaining these rights. In conclusion, many cases have gone to the supreme court to decide the constitutionality of these issues pertaining to gay rights, Even though it is in the power of the supreme court to interpret the laws and the constitution, sometimes the Supreme Court makes the wrong decision.

There was a point in time when the Supreme Court gave consent to the states to criminalize the act of adult males to engage in sexual sodomy in the privacy of their own homes. In the case of Bowers v. Hardwick the supreme court ruled against Hardwick stating that Georgia’s anti sodomy law was constitutional, however in the case of Lawrence v. Texas the Supreme Court overturned the Bowers decision and declared that such laws are in fact unconstitutional under due process and equal protection. Today the gay community still struggles to attain the same rights as heterosexual couples, but they get closer everyday.

When the courts were first confronted with a prosecution for homosexual sodomy, it looked to whether the Constitution specifically protected the right to engage in that conduct rather than analyzing the issue in terms of the right to privacy in intimate sexual situations (Bentele, 2010). The cases of Bowers v. Hardwick and Lawrence v. Texas, both were cases that were very similar in what they were trying to accomplish. It took the supreme court fifteen years to overrule a bad judgement when they ruled against Hardwick in 1986.

Many people who are opposed to equal rights for homosexuals stem from moral and religious views. Which gives the courts basis to deem these bans and laws unconstitutional. Regulation of sexual liberty comes at the expense of repressing sex and sexuality as behaviors exercised only in private. Creating a legal privilege for sex in the private domain leads to greater stigmatization and regulation of non-normative sexuality or sexual preference that does not manifest in private (Stark, 2010). The decision in Lawrence v.

Texas not only overturned the Bowers decision but it also prevents any other states with laws similar to those that were deemed unconstitutional. Gay Rights have come far since 1986 in that they have more attained their right to sexual privacy and in some states their right to get married. It will not be long until the California ban on same-sex marriage is lifted completely and other states will soon follow. It is ultimately up to the Courts to interpret the constitution and they will make less than perfect decisions, but sometimes hey make perfect decisions that remand their previous mistakes.

REFERENCES Conway, G. (2003). Inevitable Reconstructions" Voice and Ideology in Two Landmark U. S. Supreme Court Opinions. Rhetoric ; Public Affairs, 6(3), 487-507. doi:10. 1353/rap. 2003. 0058 Garlinger, P. (2004). In All But Name: Marriage and the Meaning of Homosexuality. Discourse, 26. 3, 41-72 doi: 10. 1353/dis. 2005. 0027 Bowers v. Hardwick. (2010, August 18). In Wikipedia, The Free Encyclopedia. Retrieved August 30, 2010, from http://en. wikipedia. rg/w/index. php? title=Bowers_v. _Hardwick;oldid=379495984 Lawrence v. Texas (2003) Retrieved August 30, 2010 from http://law. cornell. edu/supct/html/02-102. zs. html Stark, E. L. (2010, Summer). GET A ROOM: SEXUAL DEVICE STATUTES AND THE LEGAL CLOSETING OF SEXUAL IDENTITY. George Mason University Civil Rights Law Journal. Retrieved from http://campus. westlaw. com Dolan, M. , ; Williams, C. J. (2010, August 4). Judge strikes down Prop. 8, allows gay marriage in California. LA Times, pp. 1-2. Retrieved from http://articles. atimes. com/2010/aug/04/local/ Bowers v. Hardwick. (n. d. ). Bowers v. Hardwick. Retrieved August 30, 2010, from Google Scholar website: http://scholar. google. com/scholar_case/bowersvhardwick Bentele, U. (2010, Summer). THE NOT SO GREAT WRIT: TRAPPED IN THE NARROW HOLDINGS OF SUPREME COURT PRECEDENTS . Lewis ; Clark Law Review. Retrieved from http://westlaw. edu Garvey, T. (2010, Summer). God vs. Gays? The Right of Sexual Minorities in International Law. Denver Journal of International Law. Retrieved from http://westlaw. edu

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