Ain't nobody's business
By Kevin Uhrich 11/13/2008
The trouble facing same-sex couples hoping to sanctify their relationships through the rite of marriage is just the latest twist in a legacy of injustice older than all the battles waged by men and women of all races and religions fighting for the right to be viewed as equals in the eyes of the law.
While all these struggles for human and civil rights share some similarities, they are different in one major respect: all other groups, oppressed or not, have themselves treated gay men and women with little more than disdain, contempt or hatred — and all for people simply expressing their sexuality, even in the privacy of their homes.
Although statutes in most states are ostensibly enacted for all people to follow, sodomy laws were also somewhat different in that they were written specifically with gay sexual relations and relationships in mind — in essence, making homosexuality a crime.
It was only as other oppressed classes of people started realizing true equality in business, education and politics that these widely accepted state-sanctioned policies and laws to exclude gays and gay couples started to change, beginning in 1982.
One Saturday morning that year a cop in Atlanta went looking for Michael Hardwick on a warrant for drinking in public. The officer found his culprit, only at the time Hardwick was at his home and in the sack with another man. Hardwick was at first charged with violating Georgia’s sodomy laws, but prosecutors there dropped that complaint, focusing instead on the public drinking beef.
But, with the help of the ACLU, Hardwick had already filed his own federal lawsuit, which a district judge dismissed and the Eleventh Circuit Court of Appeals reinstated, leading the Georgia attorney general to seek redress with the US Supreme Court.
Writing for the 5-4 majority in 1986, Associate Justice Byron White, a onetime University of Colorado football star appointed by President Kennedy (a Democrat), stated that Georgia was well within its rights to criminalize Hardwick and the other man’s behavior. And Chief Justice Warren Burger (appointed by Republican Richard Nixon), agreed, saying “there is no such thing as a fundamental right to commit homosexual sodomy.”
Writing in dissent, however, an indignant Justice Harry Blackmun (another Nixon pick, perhaps best remembered for his landmark opinion in Roe v. Wade 13 years before), stated that this was a case not about legislating sexual behavior. Rather, he wrote, quoting a famous line used by Justice Louis Brandeis in dissent to a 1928 wiretapping conviction, “this case is about the most comprehensive of rights and the right most valued by civilized men, namely the right to be let alone.
“The court claims that its decision today merely refuses to recognize a fundamental right to engage in homosexual sodomy; what the court really has refused to recognize,” Blackmun wrote, with Justices William Brennan, John Paul Stevens and Thurgood Marshall (the court’s only black member) concurring, “is the fundamental interest all individuals have in controlling the nature of their intimate associations with others.”
Fast-forward 14 years to 61 percent of California voters approving Proposition 22, the Defense of Marriage Act, which allowed only men and women to get hitched. The Legislature acted twice to overturn the law, with Gov. Arnold Schwarzenegger (a Republican) vetoing both measures. Then, in 2004 San Francisco allowed gay couples to wed, and in May the state Supreme Court struck down the ban, noting that sexual orientation — like race and gender — “does not constitute a legitimate basis upon which to deny or withhold legal rights.”
That ruling, articulated for the 4-3 majority by former LA County Superior Court Judge Ron George (like Schwarzenegger, a moderate Republican), sparked Proposition 8, which passed by 52 percent of the votes cast in the Nov. 4 election.
For his part, Schwarzenegger has said that he would not support a constitutional amendment overturning the state Supreme Court’s decision, as Proposition 8 demands.
And we will not either. For far too long, far too many of our sons, daughters, brothers, sisters, aunts, uncles — and now mothers and fathers — have suffered silently while members of every other oppressed minority have moved toward full enjoyment of the fruits of living in a free society.
We believe it is well past time to extend to these historically oppressed people — of all races and both genders — the same basic civil rights that everyone else enjoys. And one of those, as Blackmun’s statement implied and George finally declared, is the right to be let alone — in this case to marry the person they choose.
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