“Hillary, Stonewall, and the Constitution”

Written by John LoPorto —

Change comes in small forms. On December 6, 2011 Secretary of State Hillary Clinton delivered a speech centered on LGBT rights at the United Nations conference in Geneva. Her speech has been called groundbreaking, and it is in a lot of respects.

Clinton was not paving new territory when she said, “…being LGBT does not make you less human. And that is why gay rights are human rights, and human rights are gay rights.” In fact, this idea is planted in the very ethos of America – although the majority forgets that from time to time.

History tells us the gay rights movement started at Stonewall in 1969. Well, sorry, but those history books are wrong.

The gay rights movement started just a few years before in the balmy year of 1787, when the Constitution was created in Philadelphia and ratified the following year. The Constitution created our dual-layers of government and the separation of powers that we treasure so much.

It also created the mysterious judicial branch of government. Mysterious because no one really knew what the hell the Supreme Court was going to do. Yes, it was created and mandated by the Constitution, but other than that it was just… there.

The Court itself created its role in the new government in 1803 during the case of Marbury v. Madison. In this case, the Court gave Congress the judicial middle finger and decided (for itself, mind you) that it has the authority to decide the constitutionality of legislative acts. Overnight, judicial review and supremacy was born.

Not only did the Court bitch slap Congress, they also pissed on the states in Martin v. Hunter’s Lessee (1816) by saying federal law trumps state law…and oh, by the way, the Court decides what the federal government can do. Suck it, America.

Within 28 years the Supreme Court went from a ragtag collection of nothing to arguably the most powerful branch in government. Since then, both Congress and the President have tried to put the Court back in its pre-1803 spot, and each time the Justices all get a good laugh in their robes and continue being the supreme overlords of the Constitution

Fast-forward a few years to 1905 and the case of Lochner v. New York. This is perhaps the most controversial and important case ever decided by the Supreme Court. In the Lochner case, the Court “discovered” the notion of substantive due process – a close sibling to the due process clause of the 14th Amendment. Under this idea, the Court can rule a law unconstitutional if its spirit (not its actual function) affects a fundamental liberty. The Lochner era (1905 to 1937) focused on economic liberties found in the spirit of the Constitution, such as freedom of contract.

In 1937, the Supreme Court abandoned economics and began addressing civil rights issues using the all-powerful and inclusive substantive due process.

Substantive due process (in the Lochner form) became the “avada kedevra” of legal issues. The Court, perhaps realizing it was over-reaching its bounds, attempted to constrain the beast in West Coast Hotel Co. v. Parrish (1937) and United States v. Carolene Products Co. (1938).

These two cases buried Lochner, but still gave the Court purpose by saying if a state is going to regulate, there must be some connection between the means and the purpose of regulation. Essentially, there must be a conceivable reason why the legislature regulates and the means of regulation must not infringe on Constitutional rights.

The real kicker, however, is that the Court will just assume the legislature knows what it is doing. In other words, they will take a stance of deferential rationality review. Substantive due process would be dead then (and most of the social reform of the twentieth century) if it wasn’t for a small footnote made by Justice Harlan Stone.

In this footnote, Justice Stone eloquently, and subtle, stated the Court would adopt a deeper level of scrutiny when minorities are involved. In other words, when the legislature deals with minorities, the Court is going to be there like Big Brother to make sure legislative intent is in line with the spirit of the Constitution, so that there is no undue burden on minorities.

So it all comes down to legislative intent. Well, legislative intent was brought to the forefront in 1965 when some Connecticut couples just wanted to buy some damn condoms. Connecticut, and most of the country, forbade contraception to most people – not because they didn’t like sex, but because they were attempting to promote the copulation of “fit” individuals.

The Court first said they will not make laws because “we are not a super-legislature.” Then, assuming no one actually read the 100-page brief, declared the Court “discovered” the penumbra of privacy found within the First, Third, Fourth, Fifth, and Ninth Amendments, “formed by emanations from those guarantees that help give them life and substances.”

Marriage (specifically the marital boudoir) lies within the protected sphere of privacy; therefore, states cannot make any laws infringing on the intimacy of a man and a woman. Basically, a whole lot of legal jargon just so married people can buy some goddamn condoms. (Single people could not buy condoms until 1972)

However, this law did not prevent the state from regulating such immoral acts as incest, bestiality, adultery, and my favorite bedroom activity: sodomy. In other words, homosexuality can still legally be regulated and forbidden by the state which was upheld in Bowers v. Hardwick (1986).

That is until 2003 in Lawrence v. Texas.

Today Texas is about as red as a strawberry and 1998, when this particular offense was committed, was no different. A Houston cop, naturally hanging around a popular gay club (probably cruising, but that’s just my guess) was insulted in some fashion by Tyron Garner and followed Garner home to his apartment.

That would be weird enough, but wait. Enter Robert Royce Eubanks, a neighbor of Garner who reported a domestic disturbance and a “man going crazy” in Garner’s apartment. Luckily, a cop was right there!

In a scene reminiscent of television staple “Cops”, the officer busted in the apartment, weapon drawn, only to see Garner and John Geddes Lawrence engaged in what I imagine can only be some kinky anal sex. The officer arrested Garner and Lawrence on the grounds of an anti-sodomy law. Did I mention Robert Royce Eubanks was a jealous ex-lover of Garner’s? The gays always have to have their drama.

Lawrence v. Texas legalized homosexuality intercourse in the United States of America. The Court ruled that laws against sodomy infringed on the fundamental right to privacy based on substantive due process. In other words, Lawrence gave us the right to have butt sex without fear of the state sending us to jail (where I assume it would be illegal to drop the soap). The state can still control public behavior (a little warning to you exhibitionists), but consenting adults are entitled to respect for private lives no matter the moral issues involved.

The Court has been involved in the gay rights movements since its conception in 1787. (Although I doubt the Founders would have envisioned such. Besides Alexander Hamilton, maybe.) As a community, we need to realize the importance of the Court. As we have seen, the state is constantly attempting to expand its powers at the expense of the people. It is the Court that is our guardian, our savior. So the next time someone bores you about some alien legal issue, just remember:

Without the law, without the Supreme Court, our community would still be illegal in the Land of the Free.

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