Gay Marriage and Religious Freedom -- Why the emphasis on male homosexuality?

An excellent article published in the New York Post on 20 April 2009 correctly observes that the vast majority of homophobes are obsessed not with lesbian sex, but with sex between men. In fact, many of the hardest-core homophobes secretly fantasize about lesbian sex; this is something that is all too well known to purveyors of heterosexual pornography, who take full advantage of the male preoccupation with the sexual activity of lesbians, and who crank out countless heterosexual porno movies depicting two or more women “getting it on” with each other.

As a group, heterosexual women tend to be much more accepting of both male and female homosexuality than are men. Some women actually enjoy watching gay men kiss and cuddle.

It is the image of two men having sex that turns so many otherwise reasonable men (in particular) into irrational bigots, who parlay their hatred of this image into political capital and who then seek to hide their hatred of such imagery behind laws prohibiting gay persons from marrying. Not long ago, such laws also prohibited gay persons from having sex, even in the privacy of their own bedrooms. No less an entity than the US Supreme Court fell victim to this mode of regressive analysis when it handed down the obscene decision of Bowers v. Hardwick, 478 U.S. 186 (1986). The Court veered into flat-out nastiness when it ignored the due process challenge to the Georgia “sodomy” statute filed by a heterosexual couple, and concentrated only on the due process challenge filed by Michael Hardwick – the gay man who was arrested (but ultimately not prosecuted) when the police, admitted into his home in error by a houseguest, entered his bedroom and found him having consensual oral sex with another man. The Court went so far as to state that it expressed no opinion as to the constitutionality of the Georgia sodomy statute as applied to married couples, and then focused, obsessively, on this statute as applied to gay men. (The majority opinion crudely declared that “The issue presented is 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.”) The Court repeatedly referred to “homosexual sodomy” (not gay sex, as later opinions have framed this issue).

In 2003, the US Supreme Court, realizing that it had perpetrated a gross and continuing injustice against gay persons, expressly and bluntly overruled Bowers, in Lawrence v. Texas, 539 U.S. 558 (2003). The US Supreme Court almost never directly overrules itself, usually preferring to ignore cases with which it no longer agrees, and opening up new lines of constitutional analysis that undermine the analysis undergirding the old decision, sub silentio. Back in 1996, the Court handed down Romer v. Evans, 517 U.S. 620 (1996), in which decision the court invoked an equal protection analysis to strike down an amendment to the Colorado state constitution (known as “Amendment 2”) that effectively robbed gay persons in that state of the right to petition their legislature, at all levels of state government, for protection from discrimination, in both the public and private sectors. Many constitutional scholars believed that the Romer Court had intentionally and carefully undermined Bowers by 1) invoking the Equal Protection Clause of the Fourteenth Amendment to strike down Amendment 2, thereby completely ignoring the due process analysis it had used in Bowers to mock and belittle Michael Hardwick's assertion of a right to sexual privacy, and by 2) failing to so much as even mention Bowers, despite the fact that Bowers was the most prominent case dealing with the rights of gay Americans.

The lower courts noted that the US Supreme Court had effectively crippled Bowers – the US Court of Appeals for the Seventh Circuit, in Nabozny v. Podlesny, 92 F.3d 446 (1996), noted that “Of course Bowers will soon be eclipsed in the area of equal protection by the Supreme Court’s holding in Romer v. Evans... Romer, which was decided following the oral argument in this case, struck down on equal protection grounds a Colorado constitutional amendment that discriminated against homosexuals. Although Romer bolsters our analysis in this case to some extent, we do not rely on it.”

When the Court handed down Lawrence, it employed entirely different language and an entirely different tone, noting at the outset that “[this] statement [about “homosexual sodomy”], we now conclude, discloses the Court’s own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. 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.”

The Lawrence Court then went on to overrule Bowers, bluntly declaring that “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”

When this statement was read out by Associate Justice Kennedy (who delivered the majority opinion from the bench), many gay spectators, some of whom had slept outside the US Supreme Court building all night so as to improve their chances of being seated, silently but openly wept...

The Lawrence majority conceded that it could have decided Lawrence by relying entirely on an equal protection analysis, but concluded that this would not have gone far enough. They wanted to ensure that anti-gay sex statutes would not be redrafted in such a manner as to apply to both gay and heterosexual couples, which would have preserved them from facial equal protection challenges and which would have made it necessary for gay plaintiffs to advance a "disparate impact" argument. This is indeed startling, in that the doctrine of avoidance counsels all Article III courts to decide cases before them on the narrowest possible grounds, and not to reach constitutional issues that do not have to be reached in order to resolve the instant case. This is closely related to the concept of measured constitutional steps; courts of equity generally decide cases as narrowly as possible, and defer questions of constitutional interpretation only to those cases that absolutely require such adjudication.

Associate Justice Sandra Day O'Connor wrote a separate concurrence in Lawrence, arguing that an equal protection analysis would have been better suited to Lawrence; however, five of her colleagues insisted on striking the Texas sodomy statute (and, by extension, all other such statutes nationwide) by invoking the Due Process Clause of the Fourteenth Amendment. O'Connor noted that evenhanded enforcement of a facially neutral sodomy statute would not long be tolerated by a democratic society (heterosexual men and women would not take kindly to being arrested and convicted for engaging in oral sex), and also implied that uneven enforcement of a facially neutral sodomy statute would permit gay plaintiffs to advance a disparate impact analysis; however, her colleagues on the bench were determined to drive a stake through the heart of all such statutes.

Judges sitting on the lower courts took note not just of the fact that Bowers had been overruled, but also of the tone employed by the US Supreme Court in Lawrence. The US Court of Appeals for the Seventh Circuit – considered by legal observers to be a conservative and scholarly appellate court – upheld the incest convictions of a brother and sister who had married each other (see Muth v. Frank, 412 F.3d 808 (7th Cir. 2005)), declining to extend the reach of Lawrence to cover and protect consensual adult incest (thereby dismissing Associate Justice Antonin Scalia’s rabid and embittered dissent in Lawrence, in which dissent Scalia had predicted that laws against incest would be vulnerable to constitutional attack). Although he agreed with his two colleagues on the three-judge panel that handed down Muth, Judge Evans refused to sign their opinion, stating that:

“As I read the majority opinion, I sense a certain degree of unease, even disdain, for the majority opinion in Lawrence. The citations to Justice Scalia’s dissent in Lawrence, I submit, are unnecessary. I also don’t care for the repetitive (seven mentions in Part B) paraphrasings of the Texas law (which prohibited “engaging in consensual sexual activity with a person of the same sex”) as a law prohibiting “homosexual sodomy.” I realize that term is used twice in the majority opinion in Lawrence, but I think its use is ill-advised and outdated as well. As I see it, the term “homosexual sodomy” is pejorative. It should be scrubbed from court decisions in the future. For these reasons, I join the judgment of the court without embracing certain aspects of the majority opinion.”

Again and again, we see that objections to gay sex (and gay marriage) almost invariably focus on gay men, as opposed to lesbians (I do not trivialize the abuse and cruelty heaped on lesbians by making this observation; in the 1990s, a lesbian woman named Sharon Bottoms lost custody of her son when a Virginia state court judge declared her to be an "unconvicted felon"). It is the thought of two men having sex that disturbs so many heterosexual men; more specifically, it is the thought of one man penetrating another that drives these people crazy.

The New York Post article touches upon this relatively one-sided hatred, but does not adequately explain it.

The bottom line is that we still live in a society in which gender roles and stereotypes are enforced, sometimes violently. In the eyes of homophobic heterosexual men, gay men are “sex traitors” who betray the masculine ideal by doing the one thing that men are never “supposed” to do – that is, letting other men penetrate them.

That is the rub. Sadly, this form of gender stereotyping exists even in the gay male community; I know several gay men who refuse to “bottom” on the grounds that this is “the woman’s position”. This is, in and of itself, a form of homophobia, internalized by those who express it. Such men also rob themselves of sexual experiences that are without question extremely pleasurable to the majority of gay men...

The New York Post article was eloquent and succinct when it declared that Christians will be required to surrender absolutely nothing once gay marriage becomes legal nationwide. Christians will remain free to teach their children that gay sex is evil, should they so desire. Churches will remain free to refuse to marry gay couples should such marriages fall afoul of their religious tenets. Other churches do recognize gay marriage, and will doubtless officiate at many millions of gay marriage ceremonies in years to come. Nobody will be prosecuted for preaching that gay people are evil and depraved. The US Supreme Court, in Brandenburg v. Ohio, 395 U.S. 444 (1969) made it very clear that even advocacy to break the law – even advocacy of terrorism – is protected by the First Amendment. Only when such advocacy “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” does it no longer enjoy First Amendment protection.

But back to the article – I am truly amazed that the New York Post (which has a reputation for rabid homophobia) published this piece. Clearly, the message is getting through. Maggie Gallagher has not had it easy as of late – her disastrous Presidency of the “National Organization for Marriage” has collapsed in shambles amidst snickers and guffaws of laughter over the comical video “The Gathering Storm”. Instead of being taken seriously by those to whom this video was targeted, it has spawned countless parodies. It is, in and of itself, a parody of the fears of those who oppose gay marriage – although it certainly was not intended to be a parody! At the cost of about $1.5 million, this video ranks as one of the most amusing – and abject – failures of propaganda ever launched. Joseph Goebbels would have been better able to stir up fear and resentment than were the brain-dead actors who participated in this mockery.

Five or 10 years from now, when gay marriage is legal throughout the nation, I believe that these actors will look back on their “contribution” to the discourse, and literally hang their heads in shame.

PHILIP CHANDLER