Not Yet Equal Under the Law

The special fear and loathing of homosexuals in American society has various psychological causes, but much of the discrimination they suffer is firmly abetted by the legal system.

In many ways the Bill of Rights was designed to protect minorities from the tyranny of the majority. But no clause in the U.S. Constitution guarantees any special safeguards to persons attracted to their own sex; gays are usually dependent entirely on protection supplied by legislatures or granted by changes in public mores. Even the embattled Equal Rights Amendment, if approved, would protect only against discrimination by sex, not sexual preference. And as last week's Miami referendum demonstrates, gaining popular approval for gay-rights-equality laws promises to be a long, perhaps impossible fight.

Much of Western opposition to homosexuality is based on Judeo-Christian teachings, particularly biblical prohibitions ("Thou shall not lie with mankind as with womankind; it is an abomination"). Laws based strictly on religious injunctions are unconstitutional unless they serve a compelling secular purpose. In the case of antihomosexual statutes, the social goals are vague and difficult to pinpoint but real to most people. Some law writers say such statutes preserve the American family concept. Others suggest that they guarantee continued propagation of the species. Still others say the goal is discouragement of promiscuity, or the adherence to a philosophical-moralistic notion of "correct" conduct. Whatever the underlying social good--and the law has not articulated it well--the courts have generally divined it and upheld the laws.

But is society any more justified in discriminating against gays than it is in showing bigotry toward blacks? After all, some psychologists believe a man has no more control over his sexual preferences than a black has choice of his skin color. And gays, notes Attorney Walter Barnett in his book Sexual Freedom and the Constitution, "are human beings who suffer from their niggerdom as much as any black man ever did, even more so." With the rise of gay militancy, at least 38 communities (but no states) have adopted laws prohibiting discrimination in jobs or housing or public accommodations. A total of 18 states have removed felony strictures for all sexual acts between consenting adults--laws usually aimed at homosexuals.

The major problem with the theory that being gay is like being black is that most psychologists believe homosexuality is conditioned, not congenital. The prominence of gay "role models" like public school teachers could arguably influence youth to experiment with homosexual practices or give vent to repressed gay tendencies.

In recent years homosexual advocates have taken heart from a series of U.S. Supreme Court decisions establishing a constitutional right of privacy in many circumstances. The court has used the new right, nowhere specifically mentioned in the Constitution, to void laws restricting the sale of contraceptives, prohibiting possession of obscene material in the home and outlawing abortions. Even so, the court is obviously in no mood to extend privacy rights to sexual deviants, particularly homosexuals. Fourteen months ago, without even bothering to hear formal arguments, the court voted 6 to 3 to affirm a decision upholding Virginia's antisodomy statute.

A major legislative breakthrough for gay rights also seems unlikely. Whenever the matter is brought to a well-publicized popular vote, it usually is defeated. Legislative easing of sodomy statutes has invariably been camouflaged as part of overall criminal-code reform; when the topic has been discussed on its own, so-called antideviancy laws have been retained or even strengthened. Ironically, those statutes are usually worded to prohibit "deviant" acts (such as fellatio and cunnilingus) by heterosexuals as well, even though various sex surveys show that perhaps 80% of all U.S. adults have indulged in at least one of these practices.

Considering all these obstacles, the gays have made remarkable advances. A consensus has now emerged that homosexuals should not be discriminated against in housing, many jobs and public accommodations. In the end, homosexuals are likely to get full rights only when--and if--the public perceives that they are no threat to that part of society's established value system that is rooted in heterosexuality. The battle for equal treatment must be won in the hearts and minds of the American people.

Most Americans today would probably agree with John Stuart Mill that the only limit on a man's pursuit of happiness should be that his actions must not hurt others. Most citizens do not care what gays do in private (arrests for consensual bedroom activities are exceedingly rare), but draw the line at voicing outright approval, fearing that somehow, some way, the acceptance of homosexuality would hurt society. Not being sure of the possible dangers, Americans prefer to be safe.

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