commentary
Expect more antigay laws to tumble
Published Thursday, 10-Jul-2003 in issue 811
BEYOND THE BRIEFS
by Robert DeKoven
Now that the Supreme Court has ruled that sodomy laws are unconstitutional, many ask whether other laws showing bias against GLBTs could be next.
In its narrowest application, the Lawrence decision merely strikes down statutes that prohibit consenting adults from engaging in oral or anal sex within the confines of their own homes, or in places where the parties have a reasonable expectation of privacy.
Contrary to comments from religious officials, the case does not sanction public sex. Statutes prohibiting lewd conduct and indecent exposure still prevent sex in public places.
The Texas case is important because Bowers v. Hardwick has been used by the military and states to justify any law or policy that has the direct or indirect effect of harming gay and lesbian adults or children.
Lawrence does not render other laws that distinguish between gays and straights unconstitutional. Those laws still exist. And you can assume states will defend them, perhaps hoping for a change of heart by the Supreme Court.
The Supreme Court’s history with regard to discrimination is tinged with irony. The Court held in Plessy v. Ferguson, in 1897, that African-Americans were entitled to equality under the Constitution. But that equality could still be denied by having “separate” laws for blacks. Thus, the slogan “separate but equal” began and lasted until 1954, when the Supreme Court re-visited the issue in Brown v. Board of Education and declared “separate but equal” is inherently unequal.
And this may be what occurs now with respect to gay rights. For example, in Vermont, despite its Supreme Court finding that gays and lesbians cannot be denied the right to marry, the legislature there decided to create a “separate” quasi-marital system for gays and lesbians. The “civil union” provides roughly the same rights as marriage, but it’s a separate system.
That’s exactly what’s happening now with domestic partnership law in California. A bill before the California State Senate attempts to put domestic partners on equal footing with straights. But it’s not the same. One requirement of the bill is that the partners share a common residence. That’s not required of straight folks. Again, it’s a separate system, but it’s not equal and never will be. Until it is equal, gays and lesbians still occupy an inferior status to their straight counterparts.
In order to justify bias against gays and lesbians, a state in the past had to show some “rational” reason for the policy. Simple “morality” was enough. However, that doesn’t fly anymore.
Historically, the policy behind marriage between a man and a woman was to foster child-rearing. Presumably, only the heterosexual marital unit provided an economic unit for a child. However, that rationale makes no sense today. Gays and lesbians, single and coupled, adopt kids, take in foster children and conceive children through other means. And more and more straight couples today are forgoing children.
One requirement of [AB 205] is that the partners share a common residence. That’s not required of straight folks.
Justice Scalia said in his dissenting opinion that he could easily foresee the Court approving of gay marriage. I have to agree with him.
Other laws and practices now suspect
States have repeatedly justified bias on the basis that the Supreme Court said in Bowers that states can not only show bias against gays, but imprison them for engaging in gay sex (in the privacy of their own homes).
In Kansas, a teen received a 17-year sentence for having sex with a boy a few years younger than himself.
While all states have laws proscribing sex between minors, as well as adults and minors, the Kansas law has a so-called “Romeo & Juliet” exception. The statute treats the crime more leniently if it occurs between couples of the opposite sex.
Matthew R. Limon had just turned 18 when he had consensual sex with a 14 year-old boy at the residential school for developmentally disabled youths, according to The Los Angeles Times. Had the younger boy been a girl, the sentence would have been no longer than 15 months, instead of the 17 years Limon received.
The Kansas courts upheld the statute, despite the claim by Limon’s attorneys that the law violates the Equal Protection Clause of the Constitution.
After the Texas case, the Supreme Court issued an order telling the Kansas Court of Appeals to reconsider the conviction in light of its opinion.
In the columns that follow, I’ll talk about some other laws and practices that involve bias against gays and lesbians.
For example, four states prohibit the mention of homosexuality in the context of sex education. Heterosexuality is, of course, allowed. Meanwhile, California law requires that schools teach heterosexuality as the only sexuality. In fact, AIDS education in California must stress “abstinence until marriage.”
And while a straight teacher can display a photo of her or his partner, many gay and lesbian teachers face dismissal for this simple act. That also should change after the Texas case.
Robert DeKoven is a professor at California Western School of Law in San Diego
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