John Whitehead's Commentary
The Changing Cultural Landscape of Morality and Gay Rights in America
As the U.S. Supreme Court prepares to decide whether a Texas law that criminalizes sex between homosexuals is constitutional, once again the debate over gay rights has become the center of an unfolding drama between those who oppose it for religious/moral reasons and those who champion it.
Yet this case is more than just a legal battle over gay rights--it is part of a cultural war over whether homosexual behavior, as a whole, will not only be legalized but also considered a legitimate lifestyle.
Prior to reaching the high court, this debate has already played out in the halls of public opinion. For example, references to homosexuality, once considered a taboo topic, have become almost the norm in popular culture. In fact, changes in the status of homosexuals in American society have been in the offing since the 1960s. Indeed, in 1961 every state prohibited homosexual sodomy. Today, however, only thirteen states make such activity a crime, and only nine criminalize heterosexual sodomy.
As an old adage reminds us, once society engages in debate on an issue, the new idea has, in many respects, already gained ground and will eventually triumph. Thus, despite the fervent rhetoric by both sides over what has been termed a landmark case, the fact is that without the Supreme Court justices even having to lift a finger, the final outcome may already have been decided. But there are still issues such as privacy and the role of morality in law-making to be resolved.
In the Texas case, police investigating a bogus weapons disturbance at a Houston apartment found John Lawrence and Tyron Garner in the bedroom engaged in a sexual act. Citing a Texas law that makes it a misdemeanor to be engaged in "deviate sexual intercourse," the policeman arrested and handcuffed the two men. After spending the night in jail, Lawrence and Garner were each fined $200.
Seeing this as a test case of momentous proportions, homosexual advocacy groups such as Lambda Defense Fund rushed to the defense of the two men, arguing that the Texas law is unconstitutional. Now it's up to the Supreme Court to decide whether gay men have a fundamental right to engage in sexual activity in the privacy of their homes without state interference. As Harvard Professor Laurence Tribe cryptically pointed out, the key question, he argues, should be "not what were Lawrence and his partner doing in that bedroom, but what was Texas doing there?"
The Supreme Court has passed this way before. For example, in 1986 in Bowers v. Hardwick, the Court upheld a Georgia sodomy law. That decision applied to both homosexual and heterosexual sodomy and, thus, did not single out gays. Only two of the justices who voted to knock down the Georgia law, however, are still on the Supreme Court. And in Romer v. Evans, a 1996 case that did single out gays, the Court held unconstitutional a Colorado law that would have prohibited homosexuals, lesbians and bisexuals from making discrimination claims based on a "minority status."
The two plaintiffs in Lawrence v. Texas argue that state interference in their sexual lives violates their right to privacy. And because the law criminalizes homosexual sodomy but not heterosexual sodomy, they allege that it violates their right to equal protection under the law. The state of Texas, on the other hand, arguing in favor of its sodomy law, insists that the law "furthers the state's longstanding moral disapproval of homosexual conduct and the deterrence of such immoral sexual activity."
Having been used successfully in the past (the Supreme Court and the lower federal courts have upheld government actions intended to promote morality), the morality card is once again a central argument in the state's case. Yet as some critics have pointed out, with a climbing divorce rate and a plethora of other vices abounding in our vice-ridden society, if maintaining morality is the objective of such laws, then the state could just as well focus on and criminalize adultery and other moral problems that lead to shattered lives and broken families.
Once the state's primary objective becomes the advancement of morality, however, the list of sins it could attack is infinite. In such a climate, any freedom or privacy we might have once possessed could well be lost.
As with the evolution of so many other once-taboo issues like adultery, divorce and deviant heterosexual behavior, the general public has clearly also changed its views over time regarding homosexuality. According to a recent Gallup Poll, in 1986, the year Bowers v. Hardwick was decided, only 32 percent of those polled thought homosexual relations should be legalized. By 2001, the percentage had risen to 54 percent. "In short," notes Gallup, "over a 19 year period from 1982 to 2001, Americans moved from leaning against the acceptability of homosexuality to a slight majority acceptance on the issue."
"What really determines what we regard as essential fundamental features of sexual autonomy," notes Yale Law School professor Jack Balkin, "is very much cultural." And the cultural change we are seeing is due to a number of factors. One is the growing visibility of gays in entertainment and the media. Another is the emotional residue from the AIDS epidemic and its debilitating effect on gays, which has drawn sympathy for the gay plight. Then there is the tendency of Americans to identify with the perceived underdog.
There has also been a slow softening in how mainstream religion views gays. And as the acceptance and/or compassionate view of homosexuality has grown, it has tended to marginalize the more fundamentalist denominations represented by public figures such as Jerry Falwell, Pat Robertson and others. Statements attributed to these religious leaders have made fundamentalists appear harsh and noncompassionate.
Conservatives as well have tended to paint themselves in stark colors. One recent example is Senator Rick Santorum's (R-Pa.) remark about the Texas sodomy case. "If the Supreme Court says that you have the right to consensual sex within your home," Santorum opined, "then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything. Does that undermine the fabric of society? I would argue yes, it does. If you say, 'There is no deviant as long as it's private, as long as it's consensual,' then don't be surprised what you get."
While Santorum's statement has been labeled hysterical, his underlying concern seems to be for the protection of the traditional family. Yet the truth of the matter is that the traditional family (comprised of a father, mother and children) has been in trouble for some time now. This is reflected in the soaring divorce rate, even in religious circles. One Barna survey showed that in the so-called "Bible Belt" states where church attendance reaches 70 percent, the divorce rates are as much as 50 percent higher than those in other states. And the percentages of couples living together out of wedlock in these states grew at a much faster rate during the 1990s than in other parts of the country.
What has become evident is that as a society we are in a conundrum. With the demise of the influence of traditional religion, the spiritual glue that once held us together is gone. The older moral absolutes have dissolved into a labyrinth of competing voices. Where once we sought solace in our families, churches or synagogues, we are now subsumed by a barrage of media images and television news that more and more simply report what the state wishes us to hear.
Thus, we are in trouble in more ways than one. And as the Supreme Court renders its opinion in Lawrence v. Texas, we must remember that the nine justices are not wizards with magical powers. They are mere mortals like the rest of us, trying their best to navigate the ever-shifting changes in America's cultural and moral landscape.
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. He can be contacted at johnw@rutherford.org.
Yet this case is more than just a legal battle over gay rights--it is part of a cultural war over whether homosexual behavior, as a whole, will not only be legalized but also considered a legitimate lifestyle.
Prior to reaching the high court, this debate has already played out in the halls of public opinion. For example, references to homosexuality, once considered a taboo topic, have become almost the norm in popular culture. In fact, changes in the status of homosexuals in American society have been in the offing since the 1960s. Indeed, in 1961 every state prohibited homosexual sodomy. Today, however, only thirteen states make such activity a crime, and only nine criminalize heterosexual sodomy.
As an old adage reminds us, once society engages in debate on an issue, the new idea has, in many respects, already gained ground and will eventually triumph. Thus, despite the fervent rhetoric by both sides over what has been termed a landmark case, the fact is that without the Supreme Court justices even having to lift a finger, the final outcome may already have been decided. But there are still issues such as privacy and the role of morality in law-making to be resolved.
In the Texas case, police investigating a bogus weapons disturbance at a Houston apartment found John Lawrence and Tyron Garner in the bedroom engaged in a sexual act. Citing a Texas law that makes it a misdemeanor to be engaged in "deviate sexual intercourse," the policeman arrested and handcuffed the two men. After spending the night in jail, Lawrence and Garner were each fined $200.
Seeing this as a test case of momentous proportions, homosexual advocacy groups such as Lambda Defense Fund rushed to the defense of the two men, arguing that the Texas law is unconstitutional. Now it's up to the Supreme Court to decide whether gay men have a fundamental right to engage in sexual activity in the privacy of their homes without state interference. As Harvard Professor Laurence Tribe cryptically pointed out, the key question, he argues, should be "not what were Lawrence and his partner doing in that bedroom, but what was Texas doing there?"
The Supreme Court has passed this way before. For example, in 1986 in Bowers v. Hardwick, the Court upheld a Georgia sodomy law. That decision applied to both homosexual and heterosexual sodomy and, thus, did not single out gays. Only two of the justices who voted to knock down the Georgia law, however, are still on the Supreme Court. And in Romer v. Evans, a 1996 case that did single out gays, the Court held unconstitutional a Colorado law that would have prohibited homosexuals, lesbians and bisexuals from making discrimination claims based on a "minority status."
The two plaintiffs in Lawrence v. Texas argue that state interference in their sexual lives violates their right to privacy. And because the law criminalizes homosexual sodomy but not heterosexual sodomy, they allege that it violates their right to equal protection under the law. The state of Texas, on the other hand, arguing in favor of its sodomy law, insists that the law "furthers the state's longstanding moral disapproval of homosexual conduct and the deterrence of such immoral sexual activity."
Having been used successfully in the past (the Supreme Court and the lower federal courts have upheld government actions intended to promote morality), the morality card is once again a central argument in the state's case. Yet as some critics have pointed out, with a climbing divorce rate and a plethora of other vices abounding in our vice-ridden society, if maintaining morality is the objective of such laws, then the state could just as well focus on and criminalize adultery and other moral problems that lead to shattered lives and broken families.
Once the state's primary objective becomes the advancement of morality, however, the list of sins it could attack is infinite. In such a climate, any freedom or privacy we might have once possessed could well be lost.
As with the evolution of so many other once-taboo issues like adultery, divorce and deviant heterosexual behavior, the general public has clearly also changed its views over time regarding homosexuality. According to a recent Gallup Poll, in 1986, the year Bowers v. Hardwick was decided, only 32 percent of those polled thought homosexual relations should be legalized. By 2001, the percentage had risen to 54 percent. "In short," notes Gallup, "over a 19 year period from 1982 to 2001, Americans moved from leaning against the acceptability of homosexuality to a slight majority acceptance on the issue."
"What really determines what we regard as essential fundamental features of sexual autonomy," notes Yale Law School professor Jack Balkin, "is very much cultural." And the cultural change we are seeing is due to a number of factors. One is the growing visibility of gays in entertainment and the media. Another is the emotional residue from the AIDS epidemic and its debilitating effect on gays, which has drawn sympathy for the gay plight. Then there is the tendency of Americans to identify with the perceived underdog.
There has also been a slow softening in how mainstream religion views gays. And as the acceptance and/or compassionate view of homosexuality has grown, it has tended to marginalize the more fundamentalist denominations represented by public figures such as Jerry Falwell, Pat Robertson and others. Statements attributed to these religious leaders have made fundamentalists appear harsh and noncompassionate.
Conservatives as well have tended to paint themselves in stark colors. One recent example is Senator Rick Santorum's (R-Pa.) remark about the Texas sodomy case. "If the Supreme Court says that you have the right to consensual sex within your home," Santorum opined, "then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything. Does that undermine the fabric of society? I would argue yes, it does. If you say, 'There is no deviant as long as it's private, as long as it's consensual,' then don't be surprised what you get."
While Santorum's statement has been labeled hysterical, his underlying concern seems to be for the protection of the traditional family. Yet the truth of the matter is that the traditional family (comprised of a father, mother and children) has been in trouble for some time now. This is reflected in the soaring divorce rate, even in religious circles. One Barna survey showed that in the so-called "Bible Belt" states where church attendance reaches 70 percent, the divorce rates are as much as 50 percent higher than those in other states. And the percentages of couples living together out of wedlock in these states grew at a much faster rate during the 1990s than in other parts of the country.
What has become evident is that as a society we are in a conundrum. With the demise of the influence of traditional religion, the spiritual glue that once held us together is gone. The older moral absolutes have dissolved into a labyrinth of competing voices. Where once we sought solace in our families, churches or synagogues, we are now subsumed by a barrage of media images and television news that more and more simply report what the state wishes us to hear.
Thus, we are in trouble in more ways than one. And as the Supreme Court renders its opinion in Lawrence v. Texas, we must remember that the nine justices are not wizards with magical powers. They are mere mortals like the rest of us, trying their best to navigate the ever-shifting changes in America's cultural and moral landscape.
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. He can be contacted at johnw@rutherford.org.
ABOUT JOHN W. WHITEHEAD
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.
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