This article titled ‘Lawrence v Texas- Decriminalising Homosexuality’ is written by Nilanjana Banerjee and discusses the decriminalizing of homosexuality.
I. Introduction
Homosexuality is the physical, mental, sexual attraction between members of same-sex or gender. The term homosexual is a hybrid of Latin and Greek words. The common alternatives to the term homosexual are gay, lesbians, LGBTQ. Since the very beginning, homosexuality has not been accepted and has always been considered problematic. Society approves of heterosexual activities only.
The American Psychological Association, American Psychiatric Association have identified sexual orientation as a characteristic that cannot be defined in isolation. Sexual orientation has to be defined in relational terms. The Supreme Court of California, in one of the cases, held that identifying the sexual orientation of an individual only with biological sex and gender identity is incomplete.
It was to be done in relation to other individuals. There was a scale developed called the Kinsey scale which rated homosexuality and heterosexuality. It even attempts to describe a person’s sexual history or episodes. It uses the scale from 0 which means exclusively heterosexual to 6 which is exclusively homosexual.
II. Brief history of homosexuals
The rights of homosexuals as we see today have ensured happiness and security for them. There is a long history of the struggle of homosexuals. It was in June 2003, that sodomy laws were struck down and homosexual activities were decriminalised.
The criminalisation of homosexuality dates back to white imperialism. In the late 19th Century, the laws were made a bit less stringent and the punishment for sodomy was now either imprisonment or hard labour. The anti-sodomy laws of that time were not only aimed at eliminating homosexuality but also to curb those activities which were considered morally indecent like adultery, incest, pornography.
Sodomy was then defined as a ‘crime against nature’. Anti sodomy laws fuelled the hostile behaviour towards gay and it even sparked the riot in 1969. Stonewall Inn was a gay club in Greenwich. It allowed dancing of homeless youth (more of gay people). On 28th June 1969, New York Police raided the Inn and started arresting people. Fed up with the police harassment they began throwing objects at the police van.
This incident took the form of a dangerous riot and it lasted for around five days. On the one year anniversary of this day, New York city members marched through the streets and called that day Christopher Street Liberation Day.
Thereafter in 1986, the court in the case of Bower v. Hardwick explicitly criminalised homosexuality. Nearly two decades after this landmark case, the Supreme Court took a giant leap towards progress and struck off the laws criminalising homosexual activities. It was in the case of Lawrence v Texas that the court decriminalised homosexuality. Even after all these struggles and landmark case judgements, there are around 14 states which have not repealed the laws criminalising homosexual activities.
Those states include Louisiana, Massachusetts, Michigan, Florida, Idaho, Georgia, Minnesota, South Carolina, Oklahoma, Mississippi, North Carolina, Texas, Kansas, Kentucky. More than 17 years have passed after formally decriminalising homosexuality but these aforementioned states still continue to target gay people and their sexual activity.
The state of Maryland has very recently in May 2020 struck off the sodomy laws. But mere repeating of the direct laws is not enough. There are certain laws that indirectly consider them substandard like the trans panic defence. It allows murderers the defence that they were into diminished capacity when they came to know that the victim was gay or transgender. This shows that the struggle for equality is still on.
III. Timeline of developments
- December 1924- Society for Human Rights by Henry Garber is the first gay rights organisation under any other society.
- 1948- Biologist and researcher Alfred Kinsley publishes research work on ‘sexual behaviour in human males’ which showed that around 37% of the males have enjoyed homosexual activities at least once.
- November 1950- Harry Hay founded Mattachine Society which was the first gay right organisation. It aimed at eliminating discrimination, prejudice towards homosexuals.
- December 1950- Senate created a report titled ‘Employment of homosexual and other sex perverts in government. It was found in this report that around 4500 gay people were fired off from the military.
- April 1952- American Psychiatric Association lists homosexuality as a form of personality disorder.
- April 1953- President Dwight Eisenhower banned homosexuals from working in any government profession or private organisation.
- January 1958- Landmark case of One Inc. V Olesen[1], Supreme Court ruled in favour of the gay and homosexuals community. The case was concerning a magazine on homosexuals which was termed as obscene by the FBI.
- January 1962- Illinois was the first state in the US to repeal sodomy laws and decriminalise homosexuality.
- 1965- Dr. John Oliven coined the term ‘transgender’ in his book ‘sexual hygiene and pathology’.
- June 1969- Stonewall Inn riot.
- June 1970- Christopher Liberation Day celebrated to commemorate the Stonewall Inn riot.
- Jan 1974- Kathy Kozachenko is the first openly gay American elected to public office.
- Oct 1979- National March in Washington for LGBTQ people and their rights.
- July 1980- Democratic Rules Committee states that there should not be any discrimination against homosexuals.
- March 1982- Wisconsin was the first state to outlaw discrimination on basis of sexual orientation.
- May 1996- in the case of Romer v. Evans[2], the court calls the protection of LGBTQ as special rights and called them unconstitutional.
- April 2000- Vermont is the first state to legalise civil unions between same-sex couples.
- June 2003- Lawrence v. Texas rules sodomy laws as unconstitutional.
IV. Decriminalising homosexuality
It was the Bowers v Hardwick[3] case where the Supreme Court ruled that the Constitution did not protect gay rights. The case began when Hardwick did not appear in the court for a public hearing and the police had to enter his house. On entering, police saw Hardwick engaging in sexual activities with a male companion. They were arrested for violating Sodomy Laws.
The Supreme Court in its decision written by Byron White ruled that right to engage in sodomy is not protected by the constitution. Court added that the law for charging sodomy was legal. The court even added that the right to privacy under the due process clause does not confer right on homosexuals.
The judgement was a serious blow to the gay community but this legal setback did not last long. This decision was overruled in 2003 in the case of Lawrence v Texas[4].
It was nearly two decades later that the issue of de- criminalising homosexuality was brought again. On 17th Sep 1998, John Lawrence was enjoying himself with his friends Eubanks and Garner. During an argument, Eubanks left and after some time the police entered.
The police came in response to the disturbance and suspect illegal arms. But when the police entered the house of John Lawrence, they found him engaging in sexual activities with another man Garner. Both of them were arrested and detained overnight with the charges of violating the Texas Homosexual Conduct Law. As per this law, a person commits an offence if he or she engages in sexual activity with a member of same-sex. They were convicted and fined but Lawrence appealed in Texas Appeals Court.
He contended that the Sodomy Laws were discriminatory and they violated the ‘equal protection clause’ of the US Constitution. Even the Texas Appeals court affirmed the conviction following the Bowers v Hardwick ruling. Lawrence then appealed in Supreme Court. The Supreme Court in the ratio of 7:2 ruled that the homosexual conduct law of the state was unconstitutional. Moreover, it overturned the conviction of Lawrence and Garner.
The court added that it violated the ‘due process clause’ of the 14th Amendment which protects the liberty to take intimate decisions. Justice Anthony Kennedy in the judgement argued that Hardwick’s ruling of not granting fundamental rights is flawed. The court said that the main issue is not the right to engage in homosexual conduct but it is about the right to privacy at home and liberty to engage in consensual adult sex.
Further, the bench referred to cases like Roe v Wade[5], Griswold v Connecticut[6] to determine how fundamental rights have been construed. Thus the court decided to further expand the base and include the gays within its ambit.
This case is considered to be of paramount significance. Firstly because it ruled that consensual and homosexual sex is a part of the right to liberty and protected under Constitution. Secondly because of the court’s departure from conservatism and expansion of the principles of liberty beyond the set boundaries.
V. Conclusion
Society has never accepted homosexual and homosexual activities due to ‘morality reasons’. Such activities have been considered indecent and they were made illegal by Sodomy laws. But the LGBTQ community kept struggling and fighting for their rights. They kept making baby steps towards progress towards equality.
It all started in 1924 with a gay organisation, then publishing review articles on gay and a lot more. But the hostility against them kept escalating. The Stonewall Inn riot is one of the biggest examples of hostility towards gay people. Thereafter Supreme Court in Bower v Hardwick formally upheld the constitutionality of Sodomy laws and declared homosexual activities as illegal.
However, the situation changed completely in 2003, when the Supreme Court in the case of Lawrence v Texas held that sodomy laws are unconstitutional. It added that homosexual activities are protected under the freedom to take intimate decisions and therefore homosexual activities were decriminalised. Though the ruling formally decriminalised it, but struggle for equality is still on.
References
[1] 355 U.S. 37, (1958).
[2] 517 U.S. 620.
[3] 478 U.S. 186.
[4] 539 U.S. 558.
[5] 410 U.S. 113 (1973).
[6] 381 U.S. 479 (1965).