It all probably started as an act of spiteful revenge on the part of a homophobic neighbor. One afternoon in 1998, Harris County Police, which includes the city of Houston, received a complaint that a “weapons disturbance” was taking place in the home of John G. Lawrence. When the police investigated, they found no weapons. Instead, they came upon an interracial couple, John G. Lawrence and Tyron Garner, engaged in consensual sexual activity. The two men were charged with violating the state Homosexual Conduct Law, which, the Supreme Court noted in its ruling, is “a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct.” They were held over night in jail, and were later fined $200. The complaining neighbor was fined for filing a false police report.

It is interesting to speculate whether that neighbor – if he’d known what he was putting into motion – would ever have filed his false complaint, because Lawrence v. Texas made it all the way to the Supreme Court, where the justices held: “The Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause.” The Supreme Court, in other words, ruled that Texas’ anti-sodomy law was unconstitutional, and thereby called into question all state anti-sodomy laws. Following this decision, Charles Rosenthal, the lawyer who had argued the case for the state of Texas, remarked, “I am disappointed that the Supreme Court justices who voted in favor of the reversal did not allow the people of the state of Texas, through their elected legislators, to determine moral standards of governance for this state.”

Everyone knew that Lawrence v. Texas was a landmark ruling, but few realized at the time the galvanizing effect it is claimed to have had on the nation’s political climate. Some political commentators have seen it as a turning point. It convinced the religious right that the dreaded homosexual agenda was at the point of victory, and stiffened their determination to resist by all means possible. George W. Bush began to complain more often about “activist judges” who were legislating from the bench and forcing their opinions onto a resisting nation. It has been claimed that presidential advisor Karl Rove used Lawrence v. Texas to convince Bush that the demand for gay rights was out of control, and by taking a firmer stance against gay rights and advocating for a constitutional amendment banning same-sex marriage, he would mobilize around 4 million evangelical Christians – who had abstained from voting for Bush in the last election because he was too soft on gays – to vote for him in 2004.

Charles Rosenthal’s remark seems the most prophetic. There is a long tradition in American politics – as old as the Republic – that when a formerly powerful group finds its grip on the central government beginning to slip, it begins to talk about states’ rights, local standards of decency and the overweening power of the central government. This debate has usually been carried out over questions of race in the past.

The Southern states became great advocates of states’ rights when abolitionists began to use the power of the central government to abolish slavery. Claims that the central government had no right to interfere in local education became loud in the wake of Brown v. Board of Education, when the Supreme Court ruled that separate but equal was not equal and the end of segregation came into sight. Now these very old claims are being used against gay rights, and once again we live in a divided nation where – as in an earlier century it was possible to be either free or a slave, depending on which state one was in – it is now possible to be legally married or not, depending on which state one is in.

There is no denying that the legislation of sexual conduct has historically been a prerogative of the individual states. The aversion to sodomy as a “crime against God” or a “crime against nature” is a legacy from English Common Law. The American colonies adopted this tradition and continued it after independence. Every state adopted some form of a sodomy law as it joined the United States, either in acceptance of an unwritten common law or in formal codification. A slow modernization of laws away from a religious doctrine into a secular system reduced penalties over time in a piecemeal fashion. All states had laws against sodomy by 1960.

Sodomy laws were completely omitted for the first time in the 1955 edition of the American Law Institute’s model penal code. In 1961, the Illinois Legislature revised their criminal code and deleted sodomy as a crime. The law went into effect in 1962 without fanfare.

Idaho was the second state to repeal its sodomy law through a general modernization of its laws. When The Advocate, which at that time was published in a newspaper format, ran a headline celebrating the repeal, members of the Idaho state Assembly called an emergency session into which they marched waving copies of The Advocate and repealed the just-enacted modern criminal code.

Connecticut was the next state to repeal its sodomy law in 1971 in a modernization of the penal code. Twenty-one other states followed suit. Gay activists had little or no involvement with most of these repeals. In fact, many gay activists in the states that repealed their laws are just beginning to form organizations that can lobby effectively for their rights.

Exceptions to that trend came from California, Minnesota, New York and Washington, D.C. Gay activists in these places began explicit gay rights campaigns to repeal their sodomy laws. California was the only one of these states to successfully repeal its law prior to 1980. California’s sodomy repeal effort began in 1969 with urging from Morris Knight, the noted gay rights activist, and Rev. Troy Perry, who heads our Metropolitan Community Church here in San Diego, and others. The repeal bill was introduced into the California Legislature in 1969 by Assemblymember Willie Brown, and every year afterwards until its passage in 1975.

In 1975, liberal Democratic state Senate Majority Leader George Moscone, who later became mayor of San Francisco, led a dedicated campaign for its passage. The Senate deadlocked on a 20-20 vote. Moscone locked the chamber doors until Lieutenant Governor Merv Dymallyin could fly back from Denver and cast the tie-breaking vote. It was signed into law by Gov. Jerry Brown.

Moscone’s efforts were greatly appreciated by California’s gay community, and probably played a large role in his election as mayor of San Francisco. He was running against our current senator, Diane Feinstein, who was showing only tepid support for gay rights. He defeated her in the mayoral primary. Even after his election, Moscone continued to be an ardent supporter of gay rights. He worked closely with Harvey Milk, the so-called Mayor of Castro Street, who was the first openly gay man to be elected to the San Francisco Board of Supervisors. The two men died together. They were murdered by former San Francisco police officer Dan White in Moscone’s office.

In the late ’70s and early ’80s, the growing strength and politicization of religious extremists significantly slowed the repeal efforts. The awakening of religious political extremists led at least two states to enact specifically anti-gay sodomy laws at the same time as they otherwise modernized their criminal codes. Kentucky enacted a homosexual-only sodomy law in 1974. Arkansas did the same in 1977 with the approval of then state Attorney General Bill Clinton. The Kentucky law was declared unconstitutional in Commonwealth v. Wasson under the equal protection and privacy rights of the Kentucky Constitution. The Arkansas law fell with Lawrence v. Texas.

The AIDS crisis did a great deal to break the political fight for repeal of the sodomy laws in different states. The energies of the gay community had to be refocused to fight for the care of AIDS victims, and to demand funding for research on HIV. Society at large became less willing to show seeming support for those practices which spread the disease. Grassroots anti-sodomy law activism withered, and the gay community came to depend more on legal decisions to fight discriminatory laws.

One of the more notable consequences of the Supreme Court decision in Lawrence v. Texas has been a renewed call for a constitutional amendment banning same-sex marriages. President Bush expressed his support for such an amendment before the last election, and continued to call for a constitutional amendment in his second inaugural speech. This has been such a headline-grabbing move on his part that we should all remind ourselves that, in fact, the president plays no political role whatsoever in amending the Constitution. He may put the prestige of his office behind an amendment, but otherwise he has no more to say about an amendment than the average man on the street. The decisions on an amendment are made by Congress and the state legislatures.

Amending the Constitution is a major undertaking, and it seems doubtful that such a controversial idea as forbidding same-sex marriages through a constitutional amendment would ever succeed. It is on the one hand true that exactly 38 states already have Defense of Marriage Acts, which outlaw same-sex marriages, but these individual acts vary in their degrees of severity and should not be considered equivalent. Nevertheless, opponents of same-sex marriage are forced to hold out for a constitutional amendment by the requirements of the U.S. legal system. A state can write an anti-same-sex marriage amendment into its state constitution and thereby tie the hands of that state’s high court, making it unable – except in states like Massachusetts and now in California – for the high court to rule on the constitutionality of refusing to recognize the marriage of a same-sex couple. However, the provisions of a state constitution can still be challenged in federal court. Only a constitutional amendment will prevent that.

Nebraska is now facing exactly such a challenge. On Nov. 7, 2000, voters in Nebraska overwhelmingly adopted Initiative Measure 416, which reads: “Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership or other similar same-sex relationship shall not be valid or recognized in Nebraska.”

The measure was adopted by a 70.1 percent to 29.9 percent margin, and received majority approval in each of the state’s 93 counties. It is of special interest because it is among the broadest of the anti-same-sex marriage amendments ever adopted, forbidding even same-sex domestic partnerships and civil unions. It also served as a model for the constitutional amendments recently adopted in the 10 states of Arkansas, Georgia, Kentucky, Mississippi, Montana, Oklahoma, North Dakota, Utah, Ohio and Oregon. Michigan also adopted a marriage amendment, but Michigan was the only one of the amendments recently adopted that did not also forbid recognition of civil unions or domestic partnerships for same-sex couples.

Nebraska’s Initiative Measure 416 became Article I, Section 29, of the state constitution. Then, in March 2003, a bill to allow same-sex couples to make burial arrangements for their partners was introduced into the state Legislature. It was dropped when the state attorney general gave as his opinion that such a law would violate Section 29. The American Civil Liberties Union and the Lambda Legal Defense and Education Fund filed a joint lawsuit in April 2003 in federal court challenging the Nebraska amendment on behalf of three state civil rights organizations and five gay couples. They are attacking Section 29 as denying equal protection under the law, as well as being a bill of attainder (an act of a Legislature declaring a person or a group of persons guilty of some crime and punishing them without the benefit of a trial) and a denial of civil rights without recourse to the judicial system in violation of Article 1, Section 10, of the Constitution, which forbids states to pass any bill of attainder.

The ACLU granted that states and voters have broad discretion to pass laws, but an ACLU spokesperson reminded the voters that “there are some limitations that are spelled out in our nation’s Constitution. It’s clear that it’s unconstitutional for a state to have a law that’s only purpose is to express disapproval toward gay people or to block gay people out of the political process.” The Nebraska lawsuit is still pending.

Louisiana was the second state in the nation to pass a constitutional amendment banning same-sex marriage, which voters approved by a 78-percent margin. As in Nebraska, the amendment was approved in every parish in the state. This amendment, too, faced a judicial challenge. The Louisiana amendment was as broad as the Nebraska amendment in its denial of rights. It, too, outlawed any recognition of domestic partnerships or civil unions.

It should be noted that this piece of legislation not only bans same-sex domestic partnerships and civil unions, it forbids “the validation or recognition of the legal status of any union of unmarried individuals.” There was to be no living in sin of any description in Louisiana. Judge William Morvant of Baton Rouge used this section of the proposed amendment to declare it unconstitutional under Louisiana law, which requires that an amendment to the constitution cover only one subject, whereas this amendment not only “defended” marriage, but it also made it impossible to regulate the division of property, the rules of inheritance, or the right to decide on the care of an incapacitated partner for any unmarried couple. The Louisiana Supreme Court disagreed, saying, “Each provision of the amendment is germane to the single object of defense of marriage and constitutes an element of the plan advanced to achieve this object.” The amendment is now part of the Louisiana Constitution.

There can be no doubt that all the state marriage amendments will face numerous legal challenges in the future. The fact that 10 of the most recently adopted amendments, following the Louisiana model, deny recognition to any form of domestic union outside of marriage will cause an outpouring of protest when the heterosexual majority finally wakes up to what it has actually approved at the polls. However, there is an even more basic right at stake in the marriage amendment debate, namely the right to due process.

Americans are guaranteed the right to due process in the Fourteenth Amendment to the Constitution, which was ratified by three-fourths of the states in 1868. The relevant part of the amendments states simply “… nor shall any state deprive any person of life, liberty or property, without due process of law.” It may seem difficult at first glance to see what this has to do with marriage amendments, but the question revolves around the definition of liberty. As early as 1923, the Supreme Court ruled that the word “liberty” in the Due Process Clause of the Fourteenth Amendment refers to the right to marry. This was in the case Meyer v. Nebraska, which, oddly enough, has nothing to do with either marriage or gay rights. It concerned a Nebraska law that prohibited the teaching of the German language to students below the eighth grade in private and public schools. This strange-sounding law was a leftover from the anti-German prejudice that was aggravated by World War I. The Supreme Court in its ruling on this case invoked the Fourteenth Amendment, using it to claim power over the institution of marriage in the following words: “While this court has not attempted to define with exactness the liberty thus guaranteed, the term . . . ‘liberty’ refers to the following . . . the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children….” It was in this way that the right to marriage became one of the most basic of rights guaranteed to every American citizen by the Constitution.

This definition was reaffirmed in 1967, in the very aptly named case of Loving v. Virginia. There it was a question of interracial marriage. Richard Loving, a white man, had married Mildred Jeter, a black woman, in Washington, D.C., in 1958. They later moved to Virginia, which at that time had laws against interracial marriage. They were sentenced to one year in jail for being married to each other. The sentence was suspended when the Lovings agreed to leave Virginia and not return for 25 years. The Supreme Court reversed their conviction on appeal, citing Meyer v. Nebraska. The Supreme Court ruled that the Virginia statute banning interracial marriage violated the Due Process Clause and the Equal Protection Clause found in the Fourteenth Amendment. This interpretation of the Equal Protection Clause was reaffirmed in 1948 in a similar case in California, when an interracial couple was denied a marriage license in Los Angeles based on a state law forbidding interracial marriages. The California Supreme Court, once again citing Meyer v. Nebraska, struck down the state law forbidding interracial marriage. Given this history of the application of the Due Process Clause to the right to marriage, it is difficult to see how existing or future marriage amendments will stand up to a legal challenge.

Aside from marriage, the other important area of wide variance in state law and their treatment of gays is adoption law. The most sweeping law concerning gay adoption is Florida’s, which forbids the adoption of children by “practicing homosexuals.” The Florida law is, so far, unique in the nation. The law has been in effect since 1977. That year, Miami-Dade County adopted a human-rights ordinance stating that civil rights could not be abridged based on sexual orientation. Anita Bryant, a former teenage-singing star and former runner-up for the Miss Florida title, who was employed at the time as a spokesperson for the Florida orange juice industry, began a campaign to repeal the ordinance. Her campaign, which was based on the stereotyping of homosexuals as sinners and child molesters, was called “Save our Children.” Miss Bryant was quoted in the Miami Sun newspaper as saying that “if gays are granted rights, next we’ll have to give rights to prostitutes, and to people who sleep with St. Bernards and to nailbiters.” Her campaign was successful in repealing the Human Rights Ordinance by a vote of 69 to 31 percent. The resulting anti-gay hysteria allowed the passage of the total ban on adoption by gay parents in Florida, although gay people may legally serve as foster parents and legal guardians for children in Florida. The results of Bryant’s campaign were repealed in 1998, when Dade County adopted an anti-bias ordinance that, so far, has not resulted in the recognition of special political rights for prostitutes, people who sleep with St. Bernards, or nailbiters. Unfortunately, the ban on adoption for gay persons has, in spite of this, remained in effect. Florida courts define “homosexual” as being “limited to applicants who are known to engage in current, voluntary homosexual activity,” thus drawing “a distinction between homosexual orientation and homosexual activity.” In other words, people who self-identify as gay or have homosexual urges may adopt, as long as they are not sexually active in a same-sex context. There have been repeated legislative attempts to repeal the Florida adoption law, and it has been legally challenged three times. It stands to this day.

The Florida law faced a challenge in 2004 in the case Lofton v. Secretary of the Department of Children and Family Services, in which six plaintiffs affected by the Florida adoption law sued the state. Steve Lofton, for whom the case is named, is a pediatric nurse who, as a foster parent, raised three children from infancy who had tested positive for HIV at birth. The court limited itself in its considerations to one child, referred to as John Doe, who also appeared as a plaintiff in the case. John Doe had tested positive for both cocaine and HIV at birth, and so was removed from his birth family and placed under Lofton’s care. The court granted that Lofton’s care of John Doe had been exemplary – so good, in fact, that Doe had sero-reverted, which is to say that he no longer tests positive for the HIV virus. Lofton cared for John Doe for the first three years of his life, then attempted to adopt him. The state of Florida countered that Lofton could become Doe’s legal guardian. Since that solution would have resulted in financial hardships for Lofton, he declined and sued to adopt. The legal battle went all the way to the U.S. Court of Appeals, the 11th District, which is located in Atlanta, Ga. The court refused to strike down Florida’s ban on gay adoptions, saying “The state of Florida has made the determination that it is not in the best interests of its displaced children to be adopted by individuals who ‘engage in current, voluntary homosexual activity,’ and we have found nothing in the Constitution that forbids this policy judgment.”

The plaintiffs’ attorneys had made all the arguments that might be expected. Lawrence v. Texas was introduced, but the judges found that this did not apply to the case. Lawrence v. Texas recognized a right to privacy between consenting adults, but the Lofton case did not turn on a right to privacy. Furthermore, Lawrence v. Texas was concerned with criminal prosecution, whereas Lofton’s case was a matter of the state granting “statutory privileges,” namely the right to adopt. The plaintiffs appealed to the social sciences when they pointed out that there is no research that indicates that the children of same-sex parents are in any way disadvantaged by their family situations, nor has it ever been found that the children of same-sex parents are more likely to become gay themselves. The court replied that this area of social research was too new to be relied upon as a guide in judgment. As for due process, the court argued that it was only relevant when it concerned a fundamental right, and it did not find that the ability to adopt was a fundamental right. The decision was appealed to the Supreme Court, which declined to hear the case.

The situation in Arkansas was formerly the reverse of the situation in Florida. There was no prohibition on gay people adopting, but a directive of the Child Welfare Agency Review Board forbade the placing of children in foster care in gay households or in a household where a gay person was living. The directive has since been struck down by Judge Timothy Fox in a case brought by the American Civil Liberties Union. Judge Fox ruled that the agency had overstepped its authority in trying to legislate public morality. The state of Arkansas is appealing the ruling. Proposed legislation that would forbid gays from adopting was defeated by one vote in the legislative committee.

The state of Mississippi passed legislation banning gay adoptions in the year 2000. Mississippi’s anti-gay adoption law was especially far-reaching in that it not only prevents gays and lesbians from adopting children in Mississippi, it also bars the state of Mississippi from recognizing out-of-state adoptions by gays and lesbians. If the law stands, it could lead to a situation where a gay family who moved into the state could lose custody of the children. The seriousness with which Mississippi regards its aversion to gay adoptions or gays having custody of children is illustrated in the case of Weigand v. Houghton.

David Weigand is a gay man now living in California. He lives in an upscale neighborhood and earns a good living as a property manager. He was living with his male partner of eight years at the time of the case. Weigand had formerly been married to Machelle Houghton. The couple had a son named Paul, who was 14 at the time that Weigand petitioned the Mississippi court for custody of him. The reason Weigand wanted custody was that Machelle had since married Jeff Houghton, who had been convicted of felony assault, and had on occasion struck Machelle in the face. He had been arrested for simple assault because of his domestic violence, and the family had been forced to move out of an apartment because of Jeff’s violent behavior. Paul had once been forced to call the police on Jeff, and – although Paul claimed his stepfather had never abused him – he admitted that he felt a great deal of strain while living in his mother’s house. Jeff had also been seriously injured in a car accident and was unable to work, placing the family under a severe financial disadvantage. The Mississippi Supreme Court admitted that Weigand offered the more stable home environment, and granted that Weigand was a devoted parent, but the factor of the moral fitness of the parents did cause the greatest concern with the chancellor. Weigand is an admitted homosexual who lives with and engages in sexual activities with another man on a day-to-day basis. Although the morality of Weigand’s lifestyle was one important factor to consider in the eyes of the chancellor, this was not the sole basis for his custody decision. The other important factor in deciding who would have custody was religion, and since Machelle Houghton was considered more “fit” in that area, she retained custody. This was considered to be in Paul’s best interest.

Oklahoma has also adopted a far-reaching ban on gay adoption. It follows the Mississippi model. Out-of-state same-sex couples are not allowed to adopt children living in Oklahoma, and Oklahoma authorities do not recognize adoptions by same-sex couples that were legalized outside of Oklahoma. As in Mississippi, Oklahoma’s laws raise the question whether a same-sex couple moving into the state could lose custody of their adopted children.

Utah does not explicitly ban adoptions by gays. The laws are more subtle there. They prohibit cohabiting couples from becoming either adoptive or foster parents. Cohabiting couples can, of course, be either gay or straight, but since same-sex couples do not have the possibility to marry, they must always remain cohabiting couples in the eyes of the law, and so can never be eligible to adopt. Wisconsin, on the other hand, does explicitly ban second parent adoptions, but – according to the Wisconsin bar – nonetheless allows gays and lesbians to adopt in practice.

State laws governing the rights of gays are fractured and contradictory. A same-sex couple may be married and adoptive parents in one state, but a move across a state line can strip them of their rights as spouses and parents. The gay population in many states is too small or unorganized to mount a campaign for recognition of their rights. Any campaign for recognition of the rights that gay people enjoy as citizens inevitably comes up against a well-financed and deeply entrenched opposition to those rights. Nonetheless, American history has until now always moved in the direction of the expansion of minority rights. It will take a fight, but victory until now has always gone to the party that had justice on its side.