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Wednesday, October 19, 2005
The Failed Doctrine of States' Rights, II
A Legal and Theorectical Argument About Gay Equality

Gay Marriage and Civil Unions fall under the purview of contested identity claims. As the New York Times wrote: "A 2004 Virginia law, the Marriage Affirmation Act, makes same-sex unions from other states "void in all respects in Virginia." Judge John R. Prosser, of Frederick County Circuit Court in Winchester, Va., relied on that law in October in granting sole custody of Isabella to Ms. Miller. Two potentially conflicting federal laws add to the confusion. The Parental Kidnapping Prevention Act largely tracks the state custody laws and requires other states to defer to the first courts to hear such cases. But the federal Defense of Marriage Act says states need not give effect to same-sex unions." The contradiction of state and local laws not only creates confusion about what the status of same-sex relationships are, but leaves in question whether gays and lesbians can be rights-bearing persons as homosexuals. Their civil rights are provisional at best when the states and Congress can, with impunity, declare that marriages can only be between a man and a woman, and, that states who do not wish to recognize the conferral of civil equality to persons from their state, needn't.

(1) Lawrence didn't recognize fully homosexuals as a legal category.

The rights of persons in the capacity as homosexuals are also provisional given the wording of Lawrence v. Texas 539 U. S. ____ (2003). Justice Kennedy concludes the opening paragraph of the court's opinion with these words (which ought to be immortalized): "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions." The Supreme Court, then, sets an ambitious goal for this opinion; in the presumption of an autonomous self inclusive of thinking, creed, expression, and intimacy, the Court must show how the spatial and transcendent liberty of a person is abridged or implicated in laws forbidding "sodomy." The problem arises, immediately, that the Court will need to distinguish a liberty of persons as it relates to "thought, belief, expression, and certain intimate conduct" and not the liberty of persons as sexual beings. The Court, in the opening sentence, further specified the location of the infringement of these rights: a dwelling or private place. Since "[l]iberty protects the person from unwarranted government intrusions into a dwelling or other private places", the rights enumerated in this opinion only exist against the government in a dwelling or private place. Thus the question of whether the government can "criminalize two persons of the same sex... engaging in certain intimate sexual conduct" is the concrete form of the liberty that one can only have in a private place. Thus, the court is only going to decide a question of privacy, not of the capacity of homosexual to bear rights. Changes the triumphalist story we want to tell about Lawrence, doesn't it?

Am I making too much of an opening statement? The Court traces its lineage of history through Griswold, where Kennedy announced that the issue that opinion decided was: "the right to make certain decisions regarding sexual conduct extends beyond the marital relationship." The key there is that these decisions are made outside the institution of marriage. The privacy right discovered in Griswold is located legally outside the bounds of marriage. Even though he believes that Court had, by the Roe decsion, made the rights personal, he does track the extramarital nature of these rights: "In Eisenstadt v. Baird, 405 U. S. 438 (1972), the Court invalidated a law prohibiting the distribution of contraceptives to unmarried persons. The case was decided under the Equal Protection Clause, id., at 454; but with respect to unmarried persons...." (8)* The only detail that Kennedy, then, seems set to add in Lawrence is whether those behaviors outside marriage can be criminalized for persons.

I cannot emphasize enough how these persons are not homosexual in their essence. When Kennedy turns to the case of Bowers v. Hardwick, he states that the issue of that case was: "
whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.” Id., at 190, emphasis added. Kennedy then maintains: "The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals." (10, emphasis added) He quickly moves the concrete rights of the homosexual, whose rights he offers may or may not be "entitled to formal recognition in the law", and makes the question one of the rights of persons who freely choose.

The opinion then quickly displaces the homosexual as the concrete matter of concern stating that "At the outset it should be noted that there is no long-standing history in this country of laws directed at homosexual conduct as a distinct matter." (11) This allows Kennedy to justify his universalization and sublation of 'homosexual' into 'person' and 'individual.' This marginalization of homosexuals as a rights-worthy category is most apparent when Kennedy writes: "Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." (17) Homosexuals are persons who take certain actions where heterosexual persons are worthy of rights as heterosexuals. Later Kennedy will clarify exactly what the Court is, and isn't, speaking about when it declares that liberty has spatial and transcendent dimensions. "It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives." The petitioners only evidence behaviors attributed to a homosexual life-style; they are not homosexuals. Even though "liberty finds no refuge in a jurisprudence of doubt", we are left wondering whether homosexuals will be able to be protected as homosexuals, not merely as consenting adults engaging in sodomy.

The Court's distaste at creating the category of homosexual as legal category to whom rights can be granted temporarily fades when Kennedy wrote "when homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." There is a relationship, the Court begrudges, between a person and their most intimate acts. The continued existence of Bowers "as precedent demeans the lives of homosexual persons."

Kennedy knows, however, that the enforcement of these arcane laws does not occur in a social vacuum, and that the homosexual identity has become politicized when he admits "[l]aws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private." The historical need for sodomy laws, he offers were in fact quite benevolent because a "substantial number of sodomy prosecutions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault. As to these, one purpose for the prohibitions was to ensure there would be no lack of coverage if a predator committed a sexual assault that did not constitute rape as defined by the criminal law." (12) In fact, "It was not until the 1970’s that any State singled out same-sex relations for criminal prosecution, and only nine States have done so."

Even though Lawrence did not qualify homosexuals as rights-bearing category, the case did, however, open the floodgates by suggesting that homosexuals qua their sexuality are discriminated against and stigmatized in the modern world. However, the Court specifically offered that the public may or may not recognize homosexuals as more than consent adults during private things, as that right to privacy derived specifically outside of marriage. O'Connor's concurrence in particular moves the Court in recognizing homosexuals as a legal category. She stated: "We have consistently held, however, that some objectives, such as “a bare . . . desire to harm a politically unpopular group,” are not legitimate state interests....[I]n Romer v. Evans, we disallowed a state statute that “impos[ed] a broad and undifferentiated disability on a single named group”—specifically, homosexuals....Sodomy between opposite-sex partners, however, is not a crime in Texas. That is, Texas treats the same conduct differently based solely on the participants. Those harmed by this law are people who have a same-sex sexual orientation and thus are more likely to engage in behavior prohibited by §21.06. The Texas statute makes homosexuals unequal in the eyes of the law by making particular conduct—and only that conduct—subject to criminal sanction."(25) Even though O'Connor would allow non-specific sodomy laws to continue existing, she does see homosexuals as a group deserving of rights.

(2) The same bigotry: the Federal government cannot be expected to lead the opinions of the American government. Kennedy continued to reaffirm that it was not the proper place of the court to decide whether these persons ought to be socially accepted. Even though the Court's decision inspired the Massachusetts Court, against the express wishes of the legislature, to recognized equal marriage rights, the status of homosexuals as rights-bearing individuals is still debatable.

What does it mean to be a gay person in America? We know that it used to mean having your sexual relations criminalized. It also means, given the Defense of Marriage Act, that your unions are not federally recognized. But you do have private rights against the government in your bedroom with another consenting adult.

How could we leave such a status to be defined by states? Different states will have different protections and, as such, leave homosexuals, their relationships, and the children of these unions, unprotected by the very institutions of this country that ought to guarantee justice. Equal marriage is a federal issue, if only because the rights of homosexuals should be equal across the nation just like every other category of persons.

Ted Steven's had the right of it when he said:

In my youth, in my manhood, in my old age, I had fondly dreamed that when
any fortunate chance should have broken up for a while the foundation of or
institution, and released us from obligations the most tyrannical that ever
man imposed in the name of freedom, that the intelligent, pure and just men
of this Republic...would have so remodeled all our institutions as to have freed
them from every vestige of human oppression, of inequality of rights,
of the recognized degradation of the poor, and the superior caste of the
rich...This bright dream has vanished 'like the baseless fabric of a dream.' I find that
we shall be obliged to be content with patching up the worst portions of the
ancient edifice, and leaving it, in many of its parts, to be swept through by...the storms of despotism
. (39th Congress, 1st Session, 3148)

*Pagination based off of the page counter at the bottom of Adobe Acrobat.