It took fifty-three years since Harry Hay started the Mattachine Society, the first modern gay-rights organization. And it took thirty-four since the Stonewall Rebellion occurred in New York City, when gays fought back against police repression. But the right to be gay finally has become law with the decision by the U.S. Supreme Court on June 26 in Lawrence v. Texas, which will go down in history as the gay equivalent of Brown v. Board of Education.
As in Brown, the Court took the high moral ground, overturned a previous wrong-headed decision (Bowers v. Hardwick), and placed the rights of gays firmly in the pantheon of the American freedom struggle. "Adults may choose to enter upon this relationship in the confines of their homes and their private lives and still retain their dignity as free persons," the Court ruled. "The liberty protected by the Constitution allows homosexual persons the right to make this choice."
Gays and lesbians now should have no fear that their consensual sexual practices are verboten by an oppressive state. "The petitioners are entitled to respect for their private lives," the court ruled. "The state cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government."
Justice Anthony Kennedy wrote the decision for the majority, and he is to be commended for breaking with his conservative colleagues, whom he often joins. And Justice Sandra Day O'Connor is also to be commended, once again managing to find a way--as she has on the issues of abortion and affirmative action--to advance the cause of freedom. (O'Connor agreed to overturn the Texas sodomy, but for a reason different from the majority. She said the law violated the Equal Protection Clause of the Fourteenth Amendment because it banned homosexual sodomy but not heterosexual sodomy.)
The decision reaffirms an expansive liberty and privacy right that "protects the person from unwarranted government intrusion." It further enshrines the home, "the most private of places," as a space especially preserved from such intrusion. But it also recognizes that there are other places, "outside the home, where the state should not be a dominant presence. Freedom extends beyond spatial bounds."
And, notably, it cited Roe v. Wade, which legalized abortion, as an important precedent. "Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirmed once more that the protection of liberty under the Due Process Clause has a substantive dimension of fundamental significance in defining the rights of the person."
That Justice Kennedy would favorably cite Roe strongly suggests that he is now prepared to uphold a challenge against it, which should give pro-choice advocates, and women in need of abortion, a little breathing room. That's speculation, of course. But what is no longer speculative is the right of gays and lesbians to liberty and equal protection in the United States
. For gays and lesbians who have suffered discrimination and harassment, or lived in fear and opprobrium, or simply were fed up with second-class citizenship, this landmark ruling is cause for great celebration, as it is for all of us who value equality and freedom.