The Right to Public Pride
What does it mean, really, when the right to love someone is limited to a society’s view of privacy?
THE ADVOCATE HAD barely gotten his introduction out when the Supreme Court justices started firing questions at him. In March 1986, the jurists were tasked with hearing arguments in the case Bowers v. Hardwick, which required them to decide whether a Georgia statute that criminalized gay sex was constitutional. Within six minutes, the justices had unloaded a flurry of queries on Michael Hobbes, the lawyer representing the state, aimed at probing the pressure points in his argument that the Constitution granted no such right to gay sex between unmarried couples.
Georgia was trying to prosecute Michael Hardwick, a gay man, after a police officer found him in his own bedroom having sex with another man. Before this night, Hardwick, then 29 years old, had been a bartender at a gay pub. One night, he went to throw a beer bottle into an outdoor trash can when a cop saw him and wrote him a citation for public drinking—except, the cop put down the wrong date to appear in court. The court issued a warrant for his failure to show up. When the police tried to serve the warrant, a guest who’d been couch-surfing at his apartment said he wasn’t sure if Hardwick was home, so the officers decided to take a look inside, where they found him. This guy had, truly, the most awful luck.
Justice John Paul Stevens, one of the liberals, wanted to know:
“What is your position on the application of the statute to a married couple? Could it be constitutionally applied, or not?”
The Court had held in Griswold v. Connecticut, 21 years earlier, that married straight couples had a right to decide for themselves whether to buy and use contraception or not. “We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system,” the Court announced then. “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” Roe v. Wade stands on the same principle, or precipice, of privacy.
“I believe in light of Griswold v. Connecticut that application of the statute to a married couple would make it very problematic for the State of Georgia to—” the Georgia lawyer began, but Stevens interrupted, wanting a more direct answer: “Do you think they could [be prosecuted] or could not?”
Jail time for gay or bisexual men depended not on our collective mood about the act itself, but on whether a piece of gold wrapped itself around the men’s ring fingers.
Stevens was making conspicuous the inconsistencies and paradoxes that law often contains. That married couples had a right to privacy but straight couples did not would seem to lead to a strange result: Jail time for queer people depended not on our collective mood about the act itself, but on whether a piece of gold wrapped itself around the ring finger of the accused. Hobbes admitted the law could not be used to prosecute a married couple.
I’m thinking about this “right to privacy” during D.C.’s Pride Weekend, in the middle of a block party that the city put together for the gays. There are drag queens, old married couples, goths, flag vendors, thongs, and bodies of all shapes and sizes. It’s an abundant space. To me, it’s full of joy. And it’s clear to me, also, that this kind of a gathering is in many ways incompatible with our laws. Why must all this love be kept private?
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In many ways, that’s what Bowers did. One legal analysis shows that the decision led to the denial of other valid constitutional rights for queer people because lower courts began to presume that if gay people engaged in “sodomy,” and “sodomy” was illegal, then all gay people were punishable for being gay. In turn, this led to a culture of self-censorship in which it was identifying as queer could bring with it a criminal penalty. Seven years after the Bowers decision, President Bill Clinton announced the military’s “Don’t Ask, Don’t Tell” policy, framing it as a “real step forward” that represented a “sensible balance” between individual rights and the need to wage war.
Bowers was later overturned, in 2003, in the case Lawrence v. Texas. The Court, which had changed its political makeup by then, found that individuals of all sexual orientations did have a right to make choices about their own private, consensual conduct, and that the only thing sustaining Bowers was pure moral antipathy against queer people. Justice Kennedy, who later became the swing vote in Obergefell, which legalized marriage equality, wrote: “Bowers was not correct when it was decided, and it is not correct today.”
Though this opinion might seem vindicating of queer people, there is, I think, a social defect in finding that expressing one’s sexual orientation or gender identity is acceptable only so long as it is kept private or within the confines of marriage, a traditional institution with roots in religion (at least in this country). While the freedom to marry who you love is no doubt liberatory for many, that choice could be viewed, by many, as just mere “toleration.” Writing in the Cleveland State Law Review, Dartmouth professor Sonu Bedi argues that subsuming queerness under the right to privacy is not only problematic, but demeaning:
“While liberal thought generally extols the value of tolerance, the right to privacy ultimately shields behavior by demeaning it. … For instance, although much of society may find gay sex disgusting, it chooses to allow it to occur in the privacy of a bedroom. The appeal to privacy … stigmatizes the act as deviant and abnormal. By forcing the act into the bedroom (this is the only way it can be protected), the act becomes unworthy of public consumption.”
This is where queerness becomes illegible to the law. The hard-won legal victories of the 21st century, such as Obergefell (right to marriage) and Bostock (freedom from discrimination based on LGBTQ status), all had plaintiffs who clearly showed deference to traditional institutions in every aspect but one. James Obergefell and John Arthur had been in a committed relationship for 22 years, and eloped because they “resolved to marry before John died” from ALS, as they put it in their brief to the Supreme Court. Gerald Lynn Bostock worked for child welfare services; Donald Zarda was a skydiving instructor; and Aimee Stephens was fired from her post as a funeral director. All were white, and their professions respectable.
Of course, people who want to keep their sexual orientation or gender identity private should be entitled to that decision. Being “outed” in this political moment, in this nation, can still come with steep costs and fatal consequences. While Pride does enjoy support from local governments and corporations in many cities as a harmless gathering (i.e., a “parade”), drag shows are in danger of being shut down elsewhere in the country. And I wrote recently about why the refuge of sanctuary is sacred to immigrant communities and how it can be applied to people persecuted for being queer.
It’s as if this anti-LGBTQ movement wants to say, Keep it in the bedroom. Out of sight. Don’t tell.
It’s a good time to remember that Pride began, both at Stonewall and years before at Compton’s Cafeteria, with trans people asserting their freedom to exist in public without being assaulted by police. The sage words of Dominique Jackson come to mind:
“You will not tell me that you accept me. You will not tell me that you tolerate me. That is not your power. I take that from you.”