2002: A Year of Challenges, Hopes, and Victories

Sexual Freedom

New Years Day, 2002 brought news of the barbaric resistance that gay sex still faces in the world: an Associated Press story dated January 1 reported that three Saudi Arabian men had been beheaded after being convicted on charges that they “committed acts of sodomy, married each other, seduced young men, and attacked those who rebuked them.” For gay and human rights advocates around the world, the news was another example of the sometimes tragic clash between religious fundamentalism and sexual liberation, a struggle ongoing worldwide, even if it takes on sharply different forms. The irony that this human rights abuse took place under the auspices of a key U.S. ally in the war against Islamic-based terrorism did not escape notice. The Saudi cruelty may have encouraged gays and lesbians in the West to dismiss the incident as something from another world, but the fact is that the struggle to end penalties on sodomy in the United States, while clearly moving in the right direction, remains undone. The U.S. Supreme Court’s announcement on December 2 that it will hear a constitutional challenge to the Texas sodomy law, which singles out gay sex for punishment, offers the prospect that the issue may finally be settled in our favor. It also gives the high court a chance to redeem itself from its notorious 1986 Bowers v. Hardback ruling upholding the now-defunct Georgia sodomy law that found “the right of privacy” does not extend to “homosexual sodomy.” Gay rights advocates have enjoyed considerable success since Hardwick. At that time, about half the states had statutes that either banned all anal and oral sex or specifically targeted for punishment such behavior among same-sex partners. Today, only 13 states still maintain criminal penalties for sodomy on their active statute books. Of those 13 states, only Texas, Kansas, Missouri, and Oklahoma penalize same-sex sodomy while allowing opposite-sex couples to engage in the same conduct. Anal and oral sex remain criminal for anybody in Idaho, Utah, Louisiana, Mississippi, Alabama, Florida, South Carolina, North Carolina, and Virginia. Sodomy laws are rarely enforced anywhere in the U.S., but that is not to say that they have no impact. As part of the ongoing effort to overturn the Texas statute during the past decade, a lesbian came forward with a lawsuit charging that when she sought to be a Dallas police officer, she was rejected on the ground that as a lesbian she was a “criminal.” A particularly shocking example of how gay sex continues to be treated in disparate fashion in the legal system was the February 1 ruling by the Kansas Court of Appeals affirming a 17-year prison sentence for Matthew Limon, an 18-year-old convicted of having consensual oral sex with an underage man. Limon, who suffers from diminished mental capacity, committed his “crime” while a resident of a school for developmentally disabled children. Kansas has a so-called “Romeo and Juliet” law, under which legislators impose sharply reduced penalties when teenage boys and girls are found to have engaged in consensual illegal sex. Had Limon and his partner been of the opposite sex, the range of his sentence would have been 13 to 15 months. Legal developments elsewhere in the nation were generally more promising: the Arkansas Supreme Court threw out that state’s sodomy statute, which like Texas’ had singled out same-sex behavior. In Massachusetts, the Supreme Judicial Court clarified an issue that had never been directly addressed, by ruling that the state’s law against “unnatural and lascivious acts” does not apply to private and consensual gay sex. A federal ruling in Minnesota found that an earlier state agreement, agreed to in a county court, not to enforce the sodomy statute applied to the entire state. Among states where sodomy laws continue to be challenged, however, Louisiana and Texas remained resistant. In November, a state appeals court in Louisiana refused to consider evidence of how that state’s sodomy law, which applies to all people, is used as the basis for discrimination against gays and lesbians by businesses and government agencies. The Texas statute was appealed to the U.S. Supreme Court after the Texas Court of Criminal Appeals, without comment, refused an appeal by two men John Lawrence and Tyron Garner, who were arrested in Lawrence’s Houston home in 1998. The circumstances appeared ideal for a new constitutional challenge to sodomy laws, in Texas and nationwide. Two men—both consenting adults—were having sex in the privacy of one of their homes. No public sex was involved. No minors were involved. There were no pesky factual complications. The Politics of AIDS In a year when the American public’s complacency about AIDS at home continued and media attention shifted toward the staggering crisis in Africa, tensions between AIDS advocates and the federal government increased significantly. Leading AIDS organizations issued a harsh report on the first year performance of President George W. Bush and embarrassed his secretary of health and human services at an international conference in Barcelona. At the same time, many of the same advocates raised alarms about the influence right wing forces were having on Bush administration HIV prevention policy and in instigating government audits of their own prevention efforts. On the eve of the first meeting of George Bush’s Presidential Advisory Council on HIV/AIDS late last winter, 15 leading AIDS advocacy and service organizations issued a stern report card rating the administration’s first year in office. On 13 separate areas related to both funding and leadership, only five of the grades were better than a D. The report card was sent to Bush along with a letter that had a tone more pleading than critical. “Our message is simple: We need your leadership to help end this human suffering and death,” the letter read in part. The report card and letter to the President was signed by some of the most recognizable names in the fight against AIDS, including the Gay Men’s Health Crisis (GMHC), the AIDS Foundation of Chicago, AIDS Project Los Angeles, the San Francisco AIDS Foundation, Washington’s Whitman-Walker Clinic, the National Association of People with AIDS, the National Minority AIDS Council, the AIDS Vaccine Advocacy Coalition, and the Lambda Legal Defense & Education Fund. Four months later, GMHC and other leading service and advocacy groups directly confronted Tommy Thompson, the federal secretary of Health and Human Services as he attempted to speak to the International AIDS Conference in Barcelona. His speech to the Conference’s 17,000 delegates but his speech was largely drowned out by the jeers and whistles of protesters in the hall. The New York Times reported that about three dozen of the protesters, who the newspaper described as “mainly Americans from ACT UP,” briefly mounted the stage where Thompson stood until they were turned back by security officials. A flyer circulated at the time of the protest faulted the Bush administration for attacking science-based prevention programs that address sexuality frankly and instead supporting abstinence–only education efforts, for refusing to support federal needle exchange proven to reduce HIV transmission, for underfunding treatment access programs, and for reducing the U.S. commitment to the Global Fund established by the United Nations targeting AIDS. In the wake of the protest against Thompson, 12 conservative members of Congress demanded an inquiry into the spending of 16 AIDS groups at the Barcelona Conference. Most of those groups had protested Thompson on July 9 and some activists charged the inquiry represented payback for shouting down Thompson. “There is an enormous concern about retaliation,” said Ana Oliveira, GMHC’s executive director. “This is retaliation from members of Congress. There is an intimidation kind of aspect to this.” GMHC and other AIDS groups also raised concerns about a series of management reviews and audits that the Department of Health and Human Services and the Centers for Disease Control undertook, beginning in the fall of 2001. Ronald Johnson, GMHC’s associate executive director, pointing to reviews of the San Francisco’s Stop AIDS Project and the Helping Us program in Washington that targets African American gay and bisexual men, told Gay City News, “There is an attempt to muzzle the kind of content that is very, very important to prevention efforts, specifically the sexually explicit content that targets men who have sex with men.” Advocates were also alarmed that advocates of abstinence-only HIV prevention efforts were gaining ascendancy on the presidential AIDS advisory panel. By November, the influence of abstinence-only ideology was undeniable. The CDC sponsored a prevention conference aimed at “tak[ing] a fresh look at the HIV epidemic.” But the presence at the meeting of right wing organizations that are openly hostile to AIDS groups and looking to slash federal AIDS dollars may have stifled any conversation. “I can’t think of another meeting that I’ve been at where overtly political groups that aren’t doing any HIV prevention work are at the table,” said Terje Anderson, executive director of the National Association of People with AIDS. “I can’t recall ever being at one like this.” Commenting on the participation of the Family Research Council, the Traditional Values Coalition, Focus on the Family, and Concerned Women for America, Paul Kawata, executive director of the National Minority AIDS Council, termed the meeting “openly hostile.” The Move Toward Marriage Over the course of the last decade’s push for gay and lesbian marriage rights, the movement’s options in the courtroom have always seemed more compelling than in the ballot box or on the political stump. 2002 was no exception. The most dramatic development of the year was a lawsuit filed by Lambda Legal Defense and Education Fund in June on behalf of seven gay and lesbian couples who have launched a lawsuit to win same-sex marriage rights in the state of New Jersey. “We’re here because we live together each and every day as a family,” said Karen Nicholson-McFadden, 36, one of the plaintiffs. “And our relationship is continually discounted and cheapened.” Her partner, Marcye, 38, visibly choked up as she asked, “What do we tell our son when he asks if we are married?” She went on to explain, “Kasey is extremely astute, he understands and asks about relationships. When he’s in other people’s homes, he recognizes marriage pictures, and asks us if people are married.” The Lambda complaint filed in Hudson County Superior Court itemized economic, health care, tax, and educational inequities created by the lack of marriage rights. The legal theory underpinning Lambda’s challenge is based in the New Jersey Constitution’s guarantee of the right to privacy that the courts have ruled includes the right to marry and its guarantee of equal protection. New Jersey courts explicitly affirmed that marriage is part of the overall right to privacy in a 1980s case unrelated to gay rights. The New Jersey court system would seem a promising venue for taking the next major step in the push for same-sex marriage. In 1999, the New Jersey Supreme Court unanimously found that James Dale had been discriminated against when he was expelled from the Boys Scouts he publicly discussed being gay, a decision later reversed by the U.S. Supreme Court. The New Jersey judiciary also distinguished itself with a 1997 Bergen County ruling that was the nation’s first to formalize the rights of lesbian and gay couples to undertake joint adoptions, in a case brought by Lambda on behalf of Jon and Michael Galluccio. “It is certainly true that New Jersey courts take the New Jersey Constitution seriously,” said David Buckel, Lambda’s senior attorney on the case. “The phrase ‘life, liberty, and the pursuit of happiness,” is in the state constitution and it really means something here.” On the political front, momentum was harder to discern. Democratic Assemblymember Dick Gottfried used the occasion of the annual Gay Pride Sunday Wedding Party to formally announce his plans to introduce a same-sex marriage bill in his house of the legislature, as a companion to the State Senate measure sponsored by Democrats Tom Duane and Liz Krueger. However, none of the four major contenders for governor this year––reelected incumbent George Pataki, Democrats Carl McCall or Andrew Cuomo, or independent Tom Golisano—were willing to come out in favor of marriage rights. McCall, Cuomo, and Golisano, however, did endorse civil union rights similar to those enacted in Vermont in 2000 (also significantly only after that state’s supreme court ordered the legislature to end the inequality that lesbian and gay couples face due to lack of marriage rights. Around the nation, there were several gubernatorial candidates who did stand up for marriage. Former Clinton administration Labor Secretary Robert Reich, during Boston’s gay pride events, came out strongly for marriage rights in his race for Massachusetts governor, though he was defeated in the September Democratic primary by Shannon O’Brien, the state treasurer. Reich’s political staff said the pro-marriage stance did not have a significant impact on non-gay voters. O’Brien, in the general election, indicated that she would sign a marriage bill if it landed on her desk, a lukewarm endorsement echoed by Myrth York, the Democratic nominee for governor in Rhode Island. Neither O’Brien nor York won election. As in Vermont, our neighbors even further north––in Canada––seem headed for a legislative solution mandated by the courts. In separate rulings this year in Ontario and Quebec, courts ruled in favor of same-sex marriage, but in both cases put the ball in the federal parliament’s court. Though the Quebec ruling specifically criticized any solution that relies on a “separate but equal” approach, the government of Prime Minister Jean Chrétien seems to be moving toward proposing a civil union style solution. As Canada, South Africa, France, Germany, Scandinavia, and the Benelux countries continue to tinker with arrangements that approach, even if ultimately falling short of full marriage rights, the Netherlands remains the only nation to give lesbians and gay men marriage equality.