This was the happiest Gay Pride march in the 34-year history of such parades—and why not? It was a moment to savor victory. Even Strom Thurmond’s death, just hours after the Supreme Court’s decision to overrule sodomy laws, was greeted as a sign. To many, this was the birth of a brave new world. But death doesn’t work that way and neither does politics. So perhaps this is a good time to consider what has changed and what has not.
One thing that remains the same is the administration’s allegiance to homophobes of the right. A day before the ruling, The Washington Post reported on a new White House initiative calling on Congress to allow religious groups that discriminate in hiring to qualify for federal funding. The president also vowed to petition the courts for a religious exemption to state and local anti-bias statutes. Thousands of gay and lesbian social-service workers, newly freed from the onus of sodomy laws, could soon face job discrimination. What’s more, the ripple effect of this policy could produce a wave of anti-gay bias from business owners who claim a religious rationale. “We consider this a declaration of war on the civil rights protections our community has won in hard-fought battles . . . over 30 years,” said Matt Foreman, executive director of the National Gay and Lesbian Task Force. Even as the high court looks with favor on gay rights, we may be facing a new wave of hostility from Congress.
The sodomy ruling certainly gives gay groups a weapon to use in challenging federal rules that legitimize bias. But most gay rights cases are decided at the appellate level, and it remains to be seen how these courts will apply the sodomy decision, especially as Bush stacks them with right-wingers. Nor is it clear how a future Supreme Court influenced by a Bush appointee will interpret its own precedent.
This is not to underestimate the importance of last week’s ruling. It’s the most momentous gay rights decision in American history. Justice Anthony Kennedy’s language explicitly gives homosexuals the right to have intimate relationships. And even though the justices made it clear that they were talking about sex in private between consenting adults, several cases that don’t quite meet this standard—one stemming from a raid on a back-room bookstore, one involving a 17-year-old who had sex with another male minor—have already been voided. But in a number of states, police are talking about changing the wording of sodomy laws so they ban “lewd conduct.” Does that mean same-sex necking? Could entrapment in the gay equivalent of lovers’ lanes actually increase? No one knows yet what “equal protection” means in homosexual terms.
The fight against sodomy laws goes back at least 40 years. It was a crucial part of the drive for sexual freedom that gained momentum in the 1960s. But until fairly recently, most activists were content to watch these statutes fall state by state while they focused on other things. The AIDS crisis changed that by fostering a new emphasis on gay relationships. As Franklin Kameny, a founder of the gay movement, notes, the battle against sodomy laws heated up when “collateral issues” arose in the ’80s and ’90s. Judges were denying child custody and adoption applications to lesbians and gay men on the basis of these statutes. Now that they’ve been overturned, the push for same-sex marriage and custody rights is certain to accelerate, as it should.
Kameny began a “personal project” against Washington, D.C.’s sodomy law in 1963, but it was not at the head of his agenda. “We had a whole list of issues,” he explains. “In those days the federal civil service had a ban on gays equivalent to the military ban, and that was near the top.” Kameny himself had been fired from a federal job at the height of Joe McCarthy’s war on “perverts,” and he embarked on a campaign to reverse that policy, organizing the first gay picket line at the White House. “As I phrased it at the time, ‘If the government can discriminate, private employers will assume they can—and they do.’ ” The federal policy was reversed in 1979, but now a new generation of bigots is pushing a new kind of government-sanctioned discrimination. It would be a painful irony if this victory made it easier for gay people to form relationships but not to hold jobs.
That could happen, because the sodomy decision deals with criminal law, not the civil matter of discrimination. In contrast, Brown v. Board of Ed., the 1954 school desegregation order, was a civil rights ruling. There’s a difference between these two approaches. Civil liberties involve freedom from legal restrictions on behavior; civil rights usually require laws that restrict biased behavior. The gay movement has always traveled on both tracks. Now, as the community’s libertarian impulses are reinforced by the Supreme Court, the temptation will be to focus on rights of citizenship, such as marriage, rather than the fight against discrimination.
Of course, there’s no contradiction between fighting for marriage and freedom from discrimination. But pursuing both goals with equal energy depends on a conscious commitment to those whose destiny may no longer seem tied to your own. When we were all outlaws, homosexual ladies and gentleman had something in common with the most marginal queers (though they may not have been willing to admit it). Now there’s a growing divide between the homo haves and those who are most vulnerable to sexual bias: the poor, the rural, the gender-queer. Other groups have risen without losing their sense of community. Now we will see whether the ties that bind gay people go deeper than necessity.
Whatever difference it ultimately makes to gay rights, the sodomy ruling has already changed gay consciousness. Above all, this is a symbolic victory, one that knocks the socks off the stigma that has shaped us. The result will show in everything from the way we hold our bodies to the response we get from society. As fear of sexual pollution eases, it could well be replaced by delight in sexual diversity. In that sense, this truly is a brave new world.
But it’s worth noting that a century passed between the Emancipation Proclamation and the Civil Rights Act of 1964. It took generations of struggle to truly change the condition of the former slaves. Things are not so different for former sodomites. Frederick Douglass’s exhortation to African Americans also applies to us, even in our moment of glory: “Agitate! Agitate! Agitate!”
Sidebar: “Attention, Sodomites! Reflections on the Supreme Court Ruling” by Richard Goldstein