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University of Minnesota law professor Dale Carpenter said April 23 that the U.S. Supreme Court took the first step toward making same-sex marriage legal with its 2003 decision that overturned anti-sodomy laws in 13 states.
“This was easily one of the most important court statements on civil rights decisions of the last 50 years,” Carpenter said. “It was the most important one for gay rights.”
Even though sodomy laws were seldom enforced, Carpenter said, they were used to marginalize gay men and lesbians, making them presumptive criminals, Carpenter said.
Carpenter, who is Earl R. Larson Professor of Civil Rights and Civil Liberties Law at the University, wrote the book Flagrant Conduct: The Story of Lawrence v. Texas: How a Bedroom Arrest Decriminalized Gay Americans, which was published in March. (The New Yorker featured the book in a long, and positive, recent review.) He spoke to the University of Minnesota Law School as part of the Discrimination by Design program co-sponsored by the Jewish Community Relations Council.
Carpenter drew some parallels between controversies around an ordinance in Houston in the 1980s and Minnesota today as it debates a referendum to define marriage to rule out same-sex couples.
“The story of this little-known ordinance has continuing salience today,” Carpenter said. The fight over the law in Houston set the stage for the Lawrence v. Texas case.
Gay rights took a positive turn in 1984 with the passage of an ordinance that prohibited discrimination against employees on the basis of sexual orientation, Carpenter said. Some commentators at the time said that gay-bashing had ended. Students at Rice University in 1979 Houston started its first GLBT organization. Nonetheless, some students in the group stood with paper bags over their heads in the group yearbook photo for fear of being identified.
In 1983, the local Gay Political Caucus had helped elect the city council members that passed the ordinance that did nothing more than add gays to the list of groups that cannot be legally discriminated against in city employment.
As the council discussed the ordinance in June 1984, members of the Ku Klux Klan stood in the hallway chanting, “Death to homosexuals.” Nonetheless, the ordinance passed 9-6 and a second ordinance on affirmative action passed 8-7.
Within months, however, a movement to repeal the ordinance created a polarized environment in which the attitudes toward gay rights were entirely reversed and the GPC, which had been politically popular, became radioactive, Carpenter said.
During the next year, Carpenter said, Houston was subjected to the most vicious antigay campaign in the history of the United States.
With large numbers of volunteers and far more money than the GPC and other activists, the opponents quickly collected 60,000 signatures and overturned the ordinance.
Even though the ordinance affected only a few city employees, Carpenter said, groups organizing to overturn it argued that it started a “slippery slope” on which homosexuals would begin to impose their views on the city and its children.
Nebraska psychologist Paul Cameron, whose “science” had been discredited because of his claim to convert homosexuals, presented “research” against homosexuality. “What gays do in public is disgusting; what they do in private is deadly,” Cameron had said, allegedly advocating quarantine for gays because of AIDS.
So-called scientists, religious leaders and even business interests attacked the gay community as “perverts,” saying that Houston was a “critical battleground” in a culture war to remake Houston on the model of San Francisco and New York City.
“Opponents outlined a 'gay conspiracy' to gain control of the city,” Carpenter said. Opponents accused gays as seeking to undermine family values, impose a quota system for city hiring, take control over schools and seduce children. Opponents also questioned the loyalty of gay policemen.
“They wanted to exploit the racial divisions and fears to defeat gay rights by driving strategic wedges between gays and black and Latino voters,” Carpenter said. A black preacher said, “I’m not ready to make more minorities until my people get a fair shake.” The African-American newspaper supported the repeal.
Gays were mistakenly described as white people, Carpenter said.
Other attacks claimed that homosexuals were prone to violence; they were sexual predators seeking to seduce children; and they sought the classrooms to teach a lifestyle to undermine family values, Carpenter said.
The tolerance of the previous year was reversed, with the repeal supported by 80 percent of the voters.
“Homophobia, not job discrimination, was the real issue of the campaign,” Carpenter said.
When the ordinance was repealed in January 1985, the major players in the Lawrence case were not involved. John Lawrence was 41; Tyron Garner, 17, and all the police were in their 20s.
On the night of Sept. 17, 1998, Houston police were called with a report about an angry man with a gun. Officers caught Lawrence and Garner having sex in the bedroom of Lawrence’s apartment—at least, that's the official story.
Carpenter’s research on the case, however, found that the police disagreed on what kind of sex was involved; one cop said anal sex, and another said oral sex. The other police at the scene saw no sex, only a suggestive poster of James Dean on the wall.
Carpenter called the case extremely rare for prosecution because it involved activity in a private bedroom between adults with no prostitution alleged. Nonetheless, the U.S. Supreme Court overturned sodomy laws on a case that probably didn’t involve sodomy. In fact, the two people named—Lawrence and Garner—were not even partners or having sex with each other at all.
Ethan Roberts, who introduced Carpenter, contrasted the case to the recent celebrations of the centennial of the Titanic’s sinking. For the Titanic to sink, Roberts said, many strange things had to go wrong—from the iceberg to tiny rivets.
With Lawrence v. Texas, he said, a number of strange things had to come together perfectly for the case to work. For example, a closeted lesbian agreed to increase the fine on the penalty so it met a threshold necessary for an appeal.
Roberts noted that Carpenter’s talk was part of the JCRC-sponsored programs called “Discrimination by Design” that includes an exhibit, “Nazi Persecution of Homosexuals 1933-1945,” displayed through May 11 at the Elmer L. Andersen Library on the West Bank.
The American public can exhibit some of the same prejudice as the Nazis did. From 1959 to 1993, Carpenter said, 60 percent public referenda on a state level involved gay rights; 88 percent of them restricted rights and 70 percent of those restrictions were approved by the public.
Carpenter outlined four themes that persist through these campaigns:
• Gays threaten society, family ties and undermine family values;
• Gays are a threat to children, a danger to schools which will teach a homosexual lifestyle;
• Gay rights are in conflict with religious liberty, “a staple of antigay campaigns”;
• Exploitation of racial divisions in which gay rights are described as white and taking away from racial minorities.
“The world of Houston in 1985 is not so different from the world we live in today,” Carpenter said. “But a lot of the culture has changed.”
One reason to be optimistic, he said, is that more people are out of the closet and more people have gay friends. Still, he noted, “a lot of people still don’t know gay people and, if they do, some don’t sit down and talk with them about marriage, for example.”
But younger people support rights for gay people and, as they get older, they don’t lose their tolerance, he said. Some 70 percent of people under 30 support gay rights.
As Carpenter completed his talk, a fire alarm went off in the law school. “This has been a flaming presentation,” he said to laughter and applause.
During the questions, an audience member asked whether the debate was more about gay men than lesbians. Carpenter and Roberts also compared that to the Nazi campaign, which arrested 100,000 men and few women.
“The debate about gay marriage in this country is really about guy marriage,” Carpenter said. “Lesbians are more likely to need family laws and marriage because they are more likely to be raising children.”
One other sign of change, he said, is that Houston Mayor Annise D. Parker is now one of the few openly lesbian politicians in the nation—a contrast to the 1980s, when a mayor was defeated for supporting the antidiscrimination ordinance.
Coverage of issues and events affecting Central Corridor communities is funded in part by a grant from the Central Corridor Collaborative.