No 'right to privacy' for gays

'Test' flops as High Court upholds sodomy laws

by M. David Stein

The March 29 ruling by the U.S. Supreme Court upholding the right of states to criminalize "sodomy" (oral and/or anal intercourse) between consenting adults in private was the result of a carefully designed "test case" that back-fired. Encouraged by recent decisions by the High Court seemingly delineating a "zone of privacy" for individuals, the National Gay Task Force (NGTF)

ANALYSIS

and the American Civil Liberties Union (ACLU) collaborated in a constitutional challenge to Virginia's sodomy law, which makes such acts between persons of the same gender a felony punishable by up to five years in prison and a $1,000 fine. In 1973 two anonymous gay male plaintiffs (referred to as "John Doe" and "Richard Roe") brought a class action suit to halt prosecutions under the statute, and the case was heard by a specially-convened three judge federal panel in Richmond, Va.

By a two to one vote, the panel rejected all arguments by the plaintiffs and upheld the law. The case

Angeles Times, the Chicago Sun-

Times, the Philadelphia Inquirer, and the Boston Globe at latest So far the

was then appealed directly to the didates will only Presidential

Supreme Court, with NGTF and ACLU representatives expressing optimism about the possibility of a favorable ruling that would "at a stroke" wipe out not only the Virginia law but the (then) 37 other Istate laws like it.

It didn't happen that way. Refusing even to hear oral arguments, the Court summarily affirmed the decision of the Richmond panel. Its one-sentence decision gave no clue as to the justices' thinking on the matter or their opinion of the reasoning behind the lower court's ruling. Four votes are required for the Supreme Court to hear arguments in a case, but only three justices William J. Brennan, Jr., Thurgood Marshall, and John Paul Stevens (a Ford appointee) apparently thought the constitutional issues raised by the plaintiffs were worthy of further consideration.

It was this aspect of the Court's action that particularly distressed most observers, gay and non-gay alike. In a New York Times op-ed. column entitled, "No Process of Law," Anthony Lewis quoted Stanford University constitutional scholar Prof. Gerald Gunther's comment that the summary action was "irresponsible" and "lawless." Lewis himself said that it gave encouragement to the view that "judges do not really act on any principle or consistent theory of the Constitution they just decide according to their prejudices or the pressures of the moment." NGTF Executive Director Dr. Bruce Voeller commented that "we can only assume that bigotry has temporarily won out over constitutional equality." Editorials condemning the decision have appeared in the Times, the New York Post, the Los

unequivocally to go on record against it are Roger MacBride of the Libertarians and Peter Camejo of the Socialist Workers.

Dr. Franklin Kameny of Washington, who was involved in the case from the beginning, was initially "very depressed" by the decision, but more recently has taken a more hopeful view. He discovered that in such cases the plaintiffs have a right to re-petition the Court for a hearing within 25 days of the original judgment, and as this sees print that action will have been taken. Since only one justice needs to change his mind for the case to be heard, this is still a possiblity. As Kameny told the Gay News, "there is in effect an unusual lobbying effort directed at the Court going on." Of course, such a reversal which is very rarely granted would not mean that the case has been won; after hearing arguments the Court might still decide the same way. But at least the justices'. opinions, majority and dissenting, would be entered into the record.

The plaintiffs challenged the Virginia law before the lower court. panel on a variety of grounds, but most important was the privacy argument. In 1965 the Supreme Court struck down state laws forbidding use of contraceptives by married couples, and in 1972 explicitly extended such protection to single people. The Court has also forbidden prosecution for possession of pornographic materials in one's own home, and in 1973 said that most state restrictions on abortions were unconstitutional. In all these cases the main ground for the decision was the principle that there is a constitutionally-protected "right of.

privacy," which the state could not infringe without some compelling social need.

or

Extension of these precedents to laws restricting private, consensual sex acts between adults whether homosexual heterosexual would appear to be an obvious move. However, the majority of the Richmond panel argued that it could not be made. Judges Albert V. Bryan, 76, and Oren R. Lewis, 73, argued that the precedents should be construed

News and Analysis

very narrowly, as aiming only at infringements upon "the privacy of marriage, the sancitity of the home, or the nurture of family life." Therefore, they could find in them "no authoritative judicial bar to the proscription of homosexuality since it is obviously no portion of marriage, home or family life." In other words, homosexually-oriented persons have no share in the "zone of privacy" other citizens enjoy-as the judges made clear by quoting in support of their decision Justice. John Harlan's dissenting opinion in the 1965 case, in which he explicitly listed homosexuality as among those: "intimacies which the law has always forbidden and which have no claim to social pre ection."

In adúr ssing other arguments made by the plaintiffs, Judges Bryan and Lewis gave as a reason for upholding Virginia's sodomy law its "ancestry going back to Judaic and Christian law." (This was supposed to show that there was no denial of "due process" in enforcement of such a law.) Moreover, in discussing whether the state had fulfilled its obligation to show it has a legitimate interest in the matter of the statute, they said that ".... (it). is not required to show that moral delinquency actually results from homosexuality (but only) that the conduct is likely to end in a contribution to moral delinquency." This, they concluded, the state had established.

The third judge on the panel, Robert Merhige, Jr. (who is 57, suggesting that a distinct

generation gap was at least a partial cause of the split vote), filed a dissenting opinion accepting the plaintiffs' privacy argument. The Supremem Court's contraception and abortion decisions, he said, stood "for the principle that every individual has a right to be free from unwarranted governmental government intrusion into decisions on matters of intimate concern." According to Merhige, "private consensual sex acts between adults are matters, absent evidence that they are harmful, in which the state has no legitimate interest."

In addition to its affirmation of the lower court decision in the Virginia case, the Supreme Court refused to consider and thus let stand the conviction of a North Carolina man for having sexual relations with an under-age Marine. The circumstances of the case also raise serious questions, since the defendant was a porno-shop operator "set up" by the local chief of police who could find no other way of getting him out of town. However, the Court's denial of certiorari in this case sets no precedent and has no national significance.

Not surprisingly, virtually every gay organization in the country has expressed reactions of shock, dismay, and/or anger at the March 29 ruling. Among the organizations issuing extensive press releases were Dignity (the organization for gay Catholics), the Universal Fellowship of Metropolitan Community Churches, (Continued on Page B6)

Sodomy repeal, discrimination

bills

Ironically, laws of the kind the U.S. Supreme Court upheld on March 29 were repealed by two more states earlier in the month. Both Indiana and South Dakota repealed their "sodomy" or "crime against nature" statutes as part of a general reform of their criminal codes, forestalling any extensive debate or opposition by homophobic legislators. This has been the usua! pattern in such efforts. Of the 15 states that have thus far achieved repeal, only two-California and New Mexico-did so as the result of a specific measure introduced for that purpose.

The current list of "repeal" states includes the following: Arkansas, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Indiana, Maine, New Mexico, North Dakota, Ohio. Oregon, South Dakota, and Washington. (Since the effective dates for the new crime codes in South Dakota and Indiana are delayed-April 1, 1977 for the former and July 1, 1977 for the lat-

how the states stack up

ter-there is still an outside chance that the legislatures there could amend them to reinstate penalities for gay sex acts. One state representative in Indiana has, in fact, already suggested this, but it is not clear whether he has much support.)

A crime code reform bill that includes a sodomy law repeal appears to be near enactment in Iowa. It has passed the Senate and is under consideration by the House. According to The Advocate, an attempt to amend it there to reintroduce penalties for oral and anal intercourse between members of the same sex failed, 60 to 32, after an hour of debate, and the governor has been urging swift passage of the bill as a whole.

A bill to authorize gay marriages, repeal all laws against consensual sex acts between consenting adults, and lower the legal age of consent from 18 to 14 has been introduced into the Wisconsin legislature. Hearings have been held on it, at which the only provision criticised was the age

reduction. It is not clear at this time what chance it has of passing.

In Maryland a bill that revamped the statues against rape and also repealed those banning gay sex acts passed the Senate 43 to 0 on March 11, but was assigned to the very conservative House Judiciary Committee, where the sodomy repeal was stripped from it and the other parts rewritten. On April 13, a compromise version of the rape law revision was passed by both houses, without the sodomy repeal included.

In Pennsylvania, a state senator recently announced his intention of introducting this month a repeal of the "deviant sexual intercourse" statute. At least 13 other senators are thought to be in favor of it, with four of them planning to be co-sponsores. Its chances for passage are genuine, but slim.

There is little optimism about the repeal bill now pending in the Massachusetts legislature, which had its first public hearings March 30, the day after the Supreme Court (Continued on Page B7)

GAY NEWS May 1976 Page B3