Sunday, March 18, 2012

Lambda Legal releases 20-minute film "Overruled" on Lawrence v. Texas

Lambda Defense and Education Fund has released a 19-minute short film, directed by Johnny Bergmann, titled “Overruled: The Case that Brought Down Sodomy Laws”. This accompanies a new book by Dale Carpenter, “Flagrant Conduct: The Story of Lawrence v. Texas: How a Bedroom Arrest Decriminalized Gay Americans”,   (W.W. Norton) as described by Linda Hirshman in Salon here.

 Note that I have a review of a similar book by William Eskridge in my Books blog (“Dishonorable Passions”, reviewed May 17, 2008).

The link for the Lambda story is here.

The YouTube embed for the video follows:

The film says that in September 1998 police came to an apartment in Pasadena, TX (near Houston) on a 911 call related to weapons, but did not search for guns but instead arrested them for violation of the Texas 21.06 law, based on rumor.

Richard Sincere reports in the Examiner of a March 16 speaking engagement at Cato in Washington DC for both Dale Carpenter on his book and by Washington Post editorial writer Charles Lane, link here.  I missed this event.  It’s getting hard to keep up with everything (particularly when George Clooney is out protesting). 

One interesting fact is that the defendants were never tried, but pleaded “no contest” (even though the police did not see and could not have actually seen a violation of 21.06),  putting all the “eggs” into th basket of the appeal process. They got nowhere with the Texas appeals courts, and went to the Supreme Court.
Another background is that Texas had seen an earlier case, Baker v. Wade, in 1982, which Don Baker won in federal court, but lost in the 5th Circuit.  In Bowers v. Hardwick, in 1986, the Supreme Court, 5-4, upheld sodomy laws across the board when not specifically aimed at homosexuals, but the majority opinion definitely focused on gays.

In 1983, a religious right group in Texas called “Dallas Doctors Against AIDS” tried to strengthen the Texas 21.06 law with bill 21.38, introduced by Bill Ceverha, introducing  a military-style ban in many occupations (such as food preparation and medicine).  That died in committee quickly (by a 7-2 vote).  The Bowers opinion never mentioned STD’s.  I was living in Dallas during the battle over the 1983 bill, which history seems to have forgotten.

The majority opinion in Lawrence (except for O’Connor) was largely a due process rationale.  The state could  not enter the privacy of the home or space of a person (life, liberty, pursuit of happiness) without a rational basis in a compelling state interest.  (There are various levels of “rational basis review” which have been relevant in other litigation, such as the military.)   The Due Process rationale was necessary to prevent states from being able to use Bowers to restore these laws, and indeed the Court majority admitted that some of the reasoning in Bowers had been wrong.

Philip Chandler has a 2009 essay explaining all of this on his blog “Gay Equality and the Law”, here

Recently, GOP candidate Rick Santorum has captured a lot of attention for his views on “sexual morality”.  In his 2005 book ("It Takes a Family:Conservatism and the Common Good"), reviewed on my Books blog March 5, 2012,  Santorum picks up on Scalia’s dissent and says that it opens the door to gay marriage. (Even the Lambda video says that the debate on gay marriage, or overturning of DADT for the military, could not happen with sodomy laws allowed to stay.)  Santorum opposes gay marriage because, in part, it “confuses” vulnerable young men into believing that having and supporting families is not important.  By his logic, sodomy laws would be on the books because of a possibly compelling state interest.  Should the private behavior of some people be regulated because of a larger majority that can’t exercise personal responsibility?  But Santorum talks about this in the context of the “common good”.

Is it constitutionally permissible to regulate personal behavior for just the “common good”?  Well, income taxes (the biggest focal point for libertarians to attack) do that.  The male-only draft has been upheld before.   Filial responsibility laws, obscure to most people but on the books in almost 30 states, would make a good constitutional fight.  Furthermore, in “Bowers v. Hardwick” fundamental liberty interests actually had to serve a common good (like procreation or family) before they could be recognized as "fundamental rights".  (Santorum has jumped on the "liberal" udea if individual sovereignty [really libertarian] as "no fault freedom". Bork has made similar comments in the 80s.)   Even in Griswold, on contraception, the protection of “married couples”, not just individuals, had been a prime objective.  But in modern ("due process") thinking, since Lawrence (and really developing during the 1990s in other cases),  intrusion into the life of an individual requires a compelling interest based on demonstrable facts, not just a chain or rationalizations such as suggested by Santorum.  As Dr. Phil has often argued, you can rationalize anything, when you aren’t completely ready to take responsibility for your own actions.

The LLDEF film does a good job of showing how the sodomy law became a proxy for other discrimination. In a "Christian" ideology so determined to provide for everyone in a family-centered social structure, you could get out of having to take care of anyone viewed as an unapprehended criminal. 

One more thing, on a lighter note. Yes, yesterday was St. Patrick’s day.  The Town DC had the Green in its “Star Wars”  ceiling decorations upstairs, but you needed flash to see the Green.

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