OutRight

by Dale Carpenter

THE LIMITS OF LAWRENCE

Celebrate, but Don’t Shut Down the Movement Yet

Now that the initial euphoria has subsided, we can start to take stock of what we actually won. We’re not criminals in America anywhere, anymore. That result all by itself merits the adjectives “historic” and “landmark” often applied to Lawrence v. Texas. But the rationale for the result—the right to privacy—may not get us a lot outside the bedroom. Much work remains.

First, let’s recognize what Lawrence actually accomplished. With four Republican-appointed justices anchoring the majority, the Court declared unconstitutional the laws of 13 states that criminalized anal and oral sex. This includes the most obviously discriminatory of those laws, like the one in Texas, that by their very terms targeted only same-sex couples. Further, it also renders unenforceable the laws of the other states that formally applied to everyone but actually harmed only gays.

Ending our presumptive outlaw status is a victory so enormous I’m not sure straight Americans can fully grasp it. The stigma of criminality cast a pall over gay lives. Everything we did, everything we accomplished, everything we said, had an asterisk next to it. There was something basically illegitimate about our very existence as long as the physical manifestation of our love could be made criminal.

That pall affected gay people everywhere. Even in states with no sodomy law, the implication of having such laws elsewhere was that gays were free only by the sufferance of the majority in a particular jurisdiction. They tolerated us, but were at liberty to withdraw that tolerance at any time they chose.

This explains, I think, the post-Lawrence jubilation among gays in places like San Francisco and Chicago, where sodomy laws fell decades ago. We felt freer even in places where, legally speaking, we had been free all along. We instinctively and correctly believed that until gay people were free everywhere in America, we weren’t free anywhere.

We felt freer and somehow justified. The Court’s rhetoric was sweeping in its insistence on the dignity and worth of gay people. Sodomy laws, Justice Kennedy’s majority opinion observed, “subject homosexual persons to discrimination both in the public and the private spheres.” Just as with straight people, the government “cannot demean [gays’] existence or control their destiny by making their private sexual conduct a crime.” On the contrary, declared the Court, gays “are entitled to respect for their private lives.”

Much of the opinion effectively apologizes to gays for the Court’s nasty and error-filled treatment of the same issue 17 years ago in Bowers v. Hardwick. Often cited to justify discrimination in other contexts, like military service, that decision had antigay ripple effects throughout American law. Bowers, said the Court, with as much insight as it has ever mustered, “demeans the lives of homosexual persons.” It “was not correct when it was decided, and it is not correct today.”

Many of us cried the first time we read the opinion.

Now let’s wipe away the tears and give clear-eyed consideration to what Lawrence does not do, at least not immediately. Being “not-criminals” for what we do in the privacy of our bedrooms is a bare minimum. It doesn’t guarantee citizenship equal to that of straight Americans.

Inequality remains throughout state and federal law. State governments are still free to discriminate against their gay employees. State laws limiting or barring gays from adopting children, or from getting custody of them, are still in force. Gays in the military can still be discharged simply for being gay. And most important of all, as the Court twice noted, Lawrence does not deal with the discriminatory state and federal marriage laws that shut gay couples out of the thousand entitlements and the priceless social support formal government recognition brings.

I don’t suggest the Court should have addressed all these matters in an opinion on sodomy laws. It would have been extreme overreaching for the Court to do so.

I do wonder how helpful a “right to privacy” will be in eliminating the many non-sexual forms of discrimination gays encounter when we enter the public realm. Full equality in these other areas requires a right to be public, not a right to be “private.” It demands equal treatment outside the bedroom, not just liberal tolerance of what we do in it. It necessitates recognition that gays are “entitled to respect” for their entire lives, not just “for their private lives.”

No doubt Lawrence will be useful in addressing these other areas of discrimination. Among the justifications for laws limiting gays’ contact with children, for example, has been that we are criminals or are at least immoral. Those particular kinds of justification for antigay discrimination are now illegitimate.

But other justifications for antigay policies remain, such as the argument that straight people do a better job of raising children. The military can still argue that, even assuming sodomy can no longer be prohibited under the military’s own criminal code, known homosexual attraction undermines unit morale and cohesion. Many more battles will need to be fought.

In time, Lawrence and its pleasing phrases may grow from a rivulet of privacy into a flowing fount of full public equality. The Court itself called gay-equality arguments “tenable.” That’s not quite an endorsement, but it’s at least an invitation for future litigants to test the waters.

So let’s enjoy this liberating moment. But let’s not shut down the movement just yet.

Writing from the conservative end of the political spectrum, Dale Carpenter began his column for OutSmart in 1994, when he lived in Houston. Now residing in Minneapolis, Carpenter is a University of Minnesota Law School professor.

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