It was the Fourth of July, a typical warm muggy summer day in Atlanta, Georgia. Not my favorite for running on hot pavement but that’s exactly what I did, with thousands of others in the annual Peach Tree Road Race. I’d come to participate in the Men and Masculinity Conference not far away in Athens, Georgia and was taking in the local flavor-- in running shoes.
The Conference was put on by the then named National Organization for Changing Men, a group of educators, social scientists, community activists and concerned citizens across gender, ethnicity and sexual preference. It had a number of key initiatives designed to move our society closer to it’s espoused values of liberty for all, one called The Campaign to End Homophobia. As part of the conference participants commitment to doing more than just “talking amongst ourselves,” we gathered at the Federal Building in Atlanta at the end of our sweaty run to protest the Hardwick Decision in which the US Supreme Court had upheld the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults when applied to homosexuals.
As difficult as it may be for some living today to believe the majority opinion was that the Constitution did not confer the right of a particular group of people in America to engage in private sexual practices, Chief Justice Warren E. Burger was the one to cite the “ancient roots” of prohibitions against homosexual sex in his reference to William Blackstone’s description of homosexual sex as an “infamous crime against nature”, worse than rape, and “a crime not fit to be named.”
Author of the dissent Justice Harry Blackmun, framed the issue as revolving around the right to privacy. Blackmun's dissent accused the Court of an "almost obsessive focus on homosexual activity" and an "overall refusal to consider the broad principles that have informed our treatment of privacy in specific cases." In response to invocations of religious taboos against homosexuality, Blackmun wrote: "That certain, but by no means all, religious groups condemn the behavior at issue gives the State no license to impose their judgments on the entire citizenry. The legitimacy of secular legislation depends, instead, on whether the State can advance some justification for its law beyond its conformity to religious doctrine." Seventeen years after Bowers v. Hardwick, the Supreme Court directly overruled its decision in Lawrence v. Texas, 539 U.S. 558 (2003), and held that anti-sodomy laws are unconstitutional.
In l986, who were we to really know we were doing much more than tilting windmills? Even though the first birth control clinic in the US was established by Margaret Sanger in l914, the use of birth control between married couples did not become recognized as a right of privacy protected in the Constitution until l965 in Griswold v. Connecticut. Even then, millions of unmarried women in 26 states were still denied birth control.
And now we are well into the 21st century and either tomorrow, Friday, June 26, 2015 or Monday, June 29, 2015 the Supreme Court will announce their decision about another personal freedom and liberty in this Land of the Free. The court is deciding TWO things:
• Whether states can ban or not allow gay marriage as 13 states currently do.
• Whether states must recognize gay marriages conducted in other states.
In other words they will have addressed whether same-sex couples have a constitutional right to marry, meaning a state can’t block that right regardless of popular opinion in the legislature. They’re also expected to rule on whether states that don’t allow same-sex marriage must recognize unions performed in other states.
Opponents of state bans argued marriage is a fundamental right regardless of gender, and the 14th Amendment, originally written in to give ‘due process’ and ‘equal protection’ to enslaved African-Americans after the Civil War, also gives gays and lesbians equal marriage rights.
Supporters of the appellate ruling supporting bans submitted briefs on behalf of dozens of religious groups and Republican lawmakers including Majority Leader Mitch McConnell and Ted Cruz of Texas. They argued the bans are a matter of states’ rights and were not put in place out of animosity toward gays and lesbians.
What are those arguing for state’s rights to curtail human freedom really arguing for? I think history has already supplied the answer—abundantly.
Just before Halloween a few short years ago my partner and I were honored to be Best Man and Best Woman at a sacred ceremony of commitment all those family and friends attending called marriage. A state election a few days later called it illegal.
If the Supreme Court allows state bans in 2015, California’s gay marriage ban would not be restored because the legal debate over it already ended. The U.S. Supreme Court let stand a lower federal court ruling that declared it unconstitutional, because those who tried to appeal it didn’t have legal standing to call for the enforcement of a ban. The state’s governor or attorney general could have appealed, but chose not to. That is not the situation in all the states where bans have been in place.
Those of us who’ve stayed the course through history and those generations today that view restrictions on the rights of anyone to establish the kind and quality of identity, relationship and family of their choosing as preposterous will prevail-- and maybe in a matter of hours. Then we’ll truly have something to celebrate with fireworks, the true spirit and meaning of liberty in America.