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Gay Legal Rights and Narratives


o 1969 the gay rights movement moved into mainstream America with a riot in New
York that resulted from police, with a warrant, leading gay/lesbian clientele from
the bar. The police started arresting the patrons causing riots that continued for
weeks after the incident.
o In 1970 at the yearly American Psychological Association conference, activists
wanted the definition of homosexuality changed so that it was not defined as a
psychological disorder but a sexual variation – but it still took two more years for
the change to occur.
o Homosexual debate came into focus in 1993 when Amendment 2 (later) was
challenged in Colorado.
o Two philosophers testified at the trial (one for Plaintiff/one for Defendant) and the
two debated beyond the case, about homosexuality – each with dramatically
different conclusions.

Bowers v. Hardwick

A 1986 Georgia case that went all the way to the U.S. Sup. Ct., upholding a statute that
made sodomy a criminal offense, thereby rejecting any fundamental right for individuals
to have homosexual sex.

Hardwick was discovered in his home having intercourse with a man and was arrested
under said statute.

Facts: Hardwick was arrested for committing sodomy with another man in violation of the
state statute criminalizing sodomy. Hardwick challenged the constitutionality of the law.
Issue: Whether the Constitution confers a fundamental right upon homosexuals to
engage in sodomy?

The court talks about fundamental rights as they relate to other groups/subjects (e.g.,
fundamental right to decide whether to have a child or not) and says that homosexual
intercourse is not a fundamental right.

Sodomy has historically been forbidding, and up until 1961 it was outlawed in all 50
states. “[T]o claim a right to engage in such conduct is “deeply rooted in this Nation’s
history and tradition”.

Court says it does not want to redefine the category of fundamental rights and the court
is closest to illegitimacy when dealing with judge-made constitutional law.

Should sodomy be permissible in the privacy of one’s home?

Hardwick relies on Stanley v. Georgia, a 1969 case dealing with obscene material in the
home. The court rejects the argument stating that illegal conduct is not always protected
in the home (e.g., possession and use of drugs, firearms, stolen property etc.). Further, if
sodomy was permitted it would be difficult to keep the right from extending to adultery,
incest and other sexual crimes committed in the home.
Romer v. Evans and Equal Protection

The Bowers case was the principal Sup. Ct. opinion until ten years later, but the Bowers
decision left people with the idea that it was permissible to discriminate against gay and
lesbian individuals.