Gay Love Protected While Same-Sex Marriage Still Opposed

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Under DOMA, the Defense of Marriage Act, Federal tax benefits accrue only to traditional marriages. Ms. Windsor challenges the Federal government’s authority to ignore her marriage.




 When the U.S. Supreme Court agreed to decide two same-sex marriage cases it
made history and international news. History was
made because the Court’s ruling will become the law of the land.

Internationally, nations such as France, wrestling with same-sex
marriage legislation, are watching America debate the social
implications of choosing whom to love. Legal theories abound. However,
this same-sex marriage debate is missing a crucial component. Sex.

Homosexual
sex under law has evolved with society. Three prior high Court cases
directly involve gay rights and address the
moral opposition to legalizing homosexual sex. In 1986, Michael
Hardwick was openly gay and living in Atlanta. A police officer entered
Hardwick’s bedroom and arrested him for violating Georgia’s statute
outlawing homosexual sex. Hardwick appealed. Chief Justice
Warren E. Burger wrote the U.S. Supreme Court’s opinion upholding
Georgia’s anti-sodomy law. There was no fundamental right to engage in
homosexual sex. To find otherwise would “cast aside a millennia of moral
teaching.”

But,
even then, the Court was divided 5-4 over gay sex. Justice Thurgood
Marshall remembered his long friendship with brilliant
and openly gay civil rights strategist Bayard Rustin and voted to
protect Hardwick’s right to engage in consensual sex with another adult
male. While Justice Lewis Powell, known as a moderate jurist, voted to
criminalize gay sex in the Hardwick case. Ironically,
Justice Powell lamented to his closeted gay law clerk that the Justice
had never known any gay person.

Ten
years later, the Supreme Court was faced with Colorado’s anti-gay
amendment. The case pitted Richard Evans against Governor
Roy Romer and involved an amendment to the Colorado constitution passed
by State-wide referendum. It placed sexual orientation outside of the
protection of antidiscrimination laws. Colorado faced a backlash of
financial and social reprisals. Ultimately, the
Supreme Court found Colorado’s amendment was an unconstitutional
violation of gay rights.

Although
the amendment would “prevent the adoption of anti-discrimination laws
intended to protect gays, lesbians, and bisexuals,”
according to Justice Antonin Scalia, Colorado only sought to preserve
“traditional sexual mores against the efforts of a politically powerful
minority to revise those mores through use of the laws.” Referring to
the Hardwick anti-sodomy decision, Justice Scalia
questioned how the Supreme Court could criminalize homosexual conduct
in Hardwick and then give “protection to those with a self-avowed
tendency or desire to engage in the conduct.”

His
answer arrived in 2003. John Lawrence and Tyron Garner were arrested
for engaging in sodomy in Lawrence’s apartment. Houston
police entered the apartment based on a false report Mr. Lawrence had a
gun. Lambda Legal, a gay rights organization used the Lawrence
conviction on sodomy charges to successfully challenge Texas’
anti-sodomy statute. The Supreme Court ruled in Lawrence v.
Texas that homosexual sex between two consenting adults was legal.

The
Court made clear that there were no children involved in the Lawrence
case. No “persons who might be injured or coerced
or who are situated in relationships where consent might not easily be
refused. It does not involve public conduct or prostitution.” However,
Justice Kennedy drew a firm line between marriage and homosexual sex.
Although the Lawrence case legalized homosexual
sex it “does not involve whether the government must give formal
recognition to any relationship that homosexual persons seek to enter.”

Brian
S. Brown, President of the National Organization for Marriage, opposes
same-sex marriage maintaining it is merely an
adult desire. Marriage between a man and a woman is a “unique and
special” bond that works in the best interest of American society and
culture. It is best for children to have a mother and father. Gay
marriage undermines society and family values.

Religious
opponents point to Leviticus 18: 22. “Do not lie with a man as one lies
with a woman. It is an abomination.” However,
Leviticus details prohibitions on heterosexual sex as well. The Old
Testament is filled with sexual prohibitions such as not coveting thy
neighbor’s wife or not having sex with thy mother’s sister and not
having sex with a prostitute. The Bible does not place
homosexuality above all others. Canadians legalized gay marriage in
2005 without becoming Sodom and Gomorrah.

Once,
cohabitation was a crime. Homosexuality meant men. Now, women lead both
gay rights cases. Kristin Perry and Sandra Steir
sought to marry and challenged Proposition 8. Prop 8, a California
referendum, defines marriage as only between a man and woman. In the
U.S. v. Windsor case, Edith Windsor was forced to pay Federal
inheritance taxes after her partner Thea Clara Spyer died.
Under DOMA, the Defense of Marriage Act, Federal tax benefits accrue
only to traditional marriages. Ms. Windsor challenges the Federal
government’s authority to ignore her marriage.

Unless the Supreme Court decides in favor of same-sex marriage, gay sex will have more protections under law than gay love.

_____________

Gloria J. Browne-Marshall, an Associate Professor of Constitutional Law at John Jay College in New York City, is author of
“Race, Law, and American Society: 1607 to Present” and a journalist covering the U.S. Supreme Court.




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