Vol. 2 A Publication of the GEAR Foundation Issue 8

HIGH GEAR

1976 GEAR

HIGH COURT SAYS NO TO GAYS

WASHINGTON, D.C. In an action which signifies a major setback for the Gay Movement, the Supreme Court on March 29 ruled by a 6 to 3 vote that states may prosecute and imprison people for committing homosexual acts even when both parties to act are consenting adults and the act occurs in private.

The court acted without hearing oral arguments on the issue and without issuing an opinion. It simply reaffirmed without any comment the 2 to 1 ruling last fall of a lower Federal Court that had rejected a challenge to a Virginia law prohibiting consensual sodomy. Three justices on the increasingly conservative dominated court Justice Thurgood Marshall, Justice William J. Brennan Jr. and Justice Paul Stevens voted in favor of hearing oral arguments on the case. However, four votes are needed for the court to consider an issue in any other than summary fashion.

The ruling came about as a result of an attempt by two gay males in their twenties, one from Richmond, Va., the other from N.Y., to get a court ruling forbidding prosecution of consenting adults for private homosexual conduct. The two using the fictitious names of John Doe and Robert Roe, filed a civil suit in Federal District Court in Richmond challenging Virginia's statute banning "crimes against nature."

Besides homosexuality, the law also bars bestiality and

certain forms of heterosexual activity.

The two men, represented by Virginia attorneys cooperating with the American Civil Liberties Union, John D. Grad and Phillip Hirschkop, challenged the statute only as it applied to homosexual relations.

They argued that gays can obtain sexual satisfaction only through sodomitical acts and that the existence of the criminal prohibition has a negative effect on their means of meeting people and on their right to selfexpression. Legally, the lawyers also said, the prohibition violated their rights to privacy and due process.

Grad and Hirschkop relied on a series of Supreme Court rulings, beginning in 1965, on the right to privacy in which the court among other actions struck down restrictions on the availability of contraceptives, ruled that citizens may have pornographic

literature

in their homes

and invali

dated laws

. restricting the right to get an abortion.

While the prosecution did not present witnesses at the trial, it generally defended the law. It argued in part that prohibiting

homosexual conduct had effect on heterosexual marriages.

encouraging

The two-judge majority on the lower court flatly rejected the challengers' emphasis on the high court's right to privacy

decisions. It said these rulings involved marriage, the sanctity of the home and family life none of which, they said was applicable here.

The judges then said the law was rational: "It is enough for upholding the legislation to

NEW DOONESBURY PASSES PRESS CENSORS

CLEVELAND From all indications, Gary Trudeau, creator of the "Doonesbury" comic strip, will make his gay male character, Andy, a regular part of the serial. Andy created a furor last month when he "came out" to his girlfriend. At that time, five leading newspapers, the Cleveland Press, Columbus Citizen Journal, the Los Angeles Times, the Miami Herald and the Houston Post dropped the series while the gay character appeared.

Now Andy's back, working as a campaigner for Ginny, a black woman in the comic strip who's

running for Congress. One column recently discussed the propriety of a gay man working openly in the campaign, and according to Lee Salem, managing editor of Universal Press Syndicate, who was contacted by Boston's Gay Community News, there have been no reports of any newspapers cancelling the series.

At the Cleveland Press an official in the editorial department said that someone must have "overlooked" the reappearance of the gay character: "Somehow it must

have slipped in," he said. He commented that the appearance of the gay character was "the biggest thing that had ever happened to 'Doonesbury'. We had a tremendous response of people who wrote in for the comic strip after we had refused to print it. There were thousands of requests. We were totally overburdened."

Local gay activists have promised to reappear on the Press doorstep should 'Doonesbury' be censored again. For now, at least, Andy appears back to stay.

establish that the (prohibited) conduct is likely to end in a contribution to moral delinquency" read the majority opinion.

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The two judges also said the prohibition on sodomy "is not and an upstart notion" included in both Judaic and Christian law. They cited, as do many fundamentalist religious groups, Leviticus, which says, "Thou shall not lie with mankind, as with womankind. It is an abomination."

The sole dissenting judge disputed the majority view of the right to privacy. He said: "Private consensual sex acts between adults are matters with absent evidence that they are harmful, in which the state has no legitimate interest." Of the state's argument that the prohibition would somehow encourage

heterosexual

marriage, he said, "it was unworthy of judicial response."

Some lawyers involved in the case expressed surprise that the Supreme Court would rule on such an important and controversial issue without hearing arguments. E. Carrington Boggan, a N.Y. lawyer active in gay rights said it was "kind of disgraceful" that the Court acted summarily.

According to Boggan, the ruling did not answer all possible challenges to laws prohibiting sodomy. It is still possible, he said, to challenge such as an "establishing" of religion" and on equal protection grounds.

To most observers, however, the decision did not appear to leave much hope for further challenges. In another case the next day, the Court simply declined to review a lower court's affirmative of conviction of a North Carolina man on sodomy charges.

It is important to note the ruling does not change current laws protecting consenting adult sexual behavior. Thirteen states, including Ohio, have repealed such prohibitions. However, the Court's decision ·lessens the pressure on the remaining 37 states to repeal their laws.

Some speculate the ruling may also weaken the drive by gay groups and civil libertarians to change laws in other areas of homosexual discrimination the

military, education positions.

etc.

As a practical matter, today's decision may have little impact in terms of increased arrests of gays in the 37 "non-liberated" states. Anti-sodomy laws are not often enforced against consenting adults in private, probably as Lawyer John Grad puts it, "because the state doesn't find out about it."

The initial reaction to the Supreme Court ruling by national gay and civil liberties groups was one of dismay and astonishment. One of the plaintiffs in a statement released through the National Gay Task Force said, "I am deeply disturbed and depressed by the Supreme Court's insensitivity to the right to privacy of all Americans."

Bruce Voeller, executive director of NGTF which helped to pay some of the legal costs in the case, said of the decision, "This was a plain simple example of homophobia the irrational fear and loathing of homosexuals. The court has abandoned the logic of the law and even of its own former rulings involving privacy."

Although representatives of the ACLU and District of Columbia Commission on Human Rights agreed that sodomy laws are rarely enforced against private and consensual sexual activity, they asserted the existence of such laws provided a pretext for discrimination against gays housing, employment, licensing, security clearances and other areas.

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"The fact that there is a 'crime' of homosexuality allows them to say homosexuals are not of good moral character and to deny them their civil rights," Mr. Neier of the Human Rights Commission said.

The consensus general among gay leaders now appears to be that the Movement will shift its attack on antihomosexual laws from the courts to the state and federal the legislatures. Many view Supreme Court ruling as only a momentary setback and vow to continue the struggle.