First Amendment Watch: Another Gay Nineties

The unprecedented violence in the streets, murders by children, assisted suicide, various living arrangements in lieu of marriage, portrayals of sexual intercourse in popular media. In the midst of what they feel is impending chaos, Christians, Orthodox Jews, and many others struggle for a sense of peace. But the victory of mind over what’s the matter is not easy to achieve. This is especially true with reference to the likely prospect that our present decade may become known in history as a different sort of Gay Nineties—i.e., homosexuality will, in these years, have been awarded, for the first time in our history, a legally established and specially protected status.

The creating of that status will not have been due to the heroism of gays in “boldly coming out,” but to media portrayals of their coming out as heroic. It will not have been due to “a dawning sense of fairness in Americans”; it is the media, which has tried to make that seem so. It will not be due to widespread approval of homosexuality by the American public; the media has given little attention to the sincere and widespread opposite sentiment. In sum, the strong tide in favor of “gay rights” has been chiefly produced by the media’s constant and unremitting effort at normalizing homosexuality as a natural choice of sexual life, its unvarying sympathy for those who make that choice, and its vilification of non-sympathizers as pathological homophobes.

The intended result of this artificially engendered build-up of sentiment is to create a bundle of “gay rights,” especially in the fields of housing, employment, and education. It is important to note that “gay rights” are unique rights. Under the Constitution and, for example, under the Equal Employment Opportunity Act, homosexual men and women enjoy the same protections as men and women generally. It is not lawful to deny a lesbian employment on the ground that she is a woman. She has all the protection that the law affords any other woman. But the “gay rights” movement demands more: not only that she may not be denied employment on the ground that she is a woman; also that she may not be denied employment on the ground that she is a lesbian. The significance of this is that it establishes in public law the principle, with enormous ramifications for family life and our society generally, that homosexual conduct has a status equal to that of heterosexual conduct.

The interests of large numbers of homosexuals articulated as “gay rights,” and borne forward on a media tidal wave, began to be politically significant a decade ago. CRISIS readers do not need a review of the accompanying incidents. But it is important now to focus on the already successful efforts of the homosexual movement to change our laws far more broadly. At the federal level this has proceeded apace with Clinton’s administrative agencies revising their regulations to bar discrimination against homosexuals.

But it is at the state level that similar action has ensued. These efforts have been presented to the public in the Aesopian terminology of “sexual orientation” or “sexual preference” rather paralleling the abortion movement’s euphemisms of “reproductive rights” and “choice.” Nine states now have adopted legislation barring discrimination in housing and employment on account of “sexual orientation.” Close on the heels of this are other contemplated expansions of gay rights, in particular the legalizing of same-sex marriages, and, in the train of this, new rules relating to custody, adoption, divorce, property, taxation, and the very definitions of marriage and family.

Inevitably, these issues have started moving into our courts. Two such cases are now before the Supreme Court. In 1992 the “Irish-American Gay, Lesbian and Bisexual Group of Boston,” interestingly known as “GLIB,” was formed for the purpose of marching in the traditional St. Patrick’s Day Parade. This, so GLIB said, was to express pride in their triple identity as Irish, American, and homo‑sexual—also to show “the diversity within the gay, lesbian, and bisexual communities.” South Boston Allied War Veterans Council, the organization sponsoring the parade, pointed out that the parade was privately organized and had no other purpose than to “express traditional religious and social values.” The Veterans had, in past years, always excluded groups, the KKK, for example, having aims not coinciding with those values. Homosexuality, to the Veterans, was a theme utterly at war with the values celebrated by the parade. The expression of those values, said the Veterans, was protected by the First Amendment’s provisions on freedom of speech and assembly. They pointed to decades of decisions by the U.S. Supreme Court in racial and other civil rights cases holding parades to be “a pristine form of speech.”

Massachusetts’ Supreme Judicial Court in July overrode the Veterans’ objections. The court held that the parade expressed no message of values, and that, as a public event, it was subject to the Massachusetts statute barring discrimination in public places based on sexual orientation. This ham-handed put-down of the Veterans’ rights to freedom of expression and association was worsened by the fact that government, namely, the court, was implicitly ruling that if they were to express themselves by a parade at all, the Veterans must, by including GLIB in the march, include expression of values conscientiously objectionable to them.

While the Veterans’ case, as it now comes before the U.S. Supreme Court, does not challenge the right of states to adopt legislation protecting gays, it does pose the big question of whether such acts can be used for the suppression of First Amendment rights. An even larger question is posed by the second “gay rights” case, this out of Colorado, which the Supreme Court has now agreed to hear: whether the citizens of a state may bar the very adoption of gay rights laws.

Coloradans had witnessed the gay rights campaign nationally and its success in their own state through adoptions of gay rights ordinances by several major cities. Widespread public concern grew that gay rights legislation would endanger the familial and privacy interests of citizens and the enjoyment of their associational and religious rights. There was well-grounded concern also respecting forcing state colleges and public and even private religious schools to conform educational policies to homosexual interests.

Popular judgment condemned governmental approval of homosexual practices as constituting a legitimate, alternative lifestyle. Indeed, enforcement of gay rights ordinances in Aspen, Denver, and Boulder caused intense alarm as, for example, in Boulder, where a shop owner, whose wife had distributed literature on homosexuality to a gay employee, was ordered to attend “sensitivity” training.

The reach of some ordinances was so broad that a church was required to give over use of its facilities to gay organizations if it opened them up to other community organizations. A voter uprising resulted in Amendment 2 to the state constitution barring the adopting, by any governmental entity in Colorado, of statutes, ordinances, or regulations giving protected status to homosexuals. Gay rights supporters sued to have Amendment 2 declared void. The fascinating trial, which ensued has been described in the pages of the March, 1995 CRISIS by Robert Royal. The Colorado Supreme Court on November 7, 1994 issued a final order declaring that Amendment 2 violated the Equal Protection Clause of the federal Constitution.

The court, in so holding, placed homosexuals in the same historic civil rights category as an inherently disadvantaged minority. It went on also to hold that Amendment 2 denied homosexuals the equal protection of the laws because it denied them, as “an independently identifiable group,” their “fundamental right to participate equally in the political process.” But as the dissenting opinion in the case rightly said, homosexuals, unlike racial minorities, are “a relatively politically powerful and privileged special interest group.” Further, hitherto unknown to the law is the idea that participation in the political process, other than through voting, is some sort of fundamental right. But having declared gay political interests, unlike myriad other groups’ interests, to be “fundamental,” the court dismissed out of hand the religious and societal interests claimed by a majority of Coloradans in supporting Amendment 2.

Nine years ago the Court, in Bowers v. Hardwick, by a vote of five to four, held that the Constitution conferred on homosexuals no fundamental right to engage in consensual sodomy even in the privacy of the home. To hold otherwise, said the Court, “would be to cast aside millennia of moral teaching.” Time has passed, and the membership of the Court has changed. But what has not passed or changed is the reality encapsulated by Dennis Prager, in CRISIS, some years ago:

[O]nce one argues that any non-marital form of sexual behavior is the moral equal of marital sex, the door is opened to all other forms of sexual expression. If consensual homosexual activity is valid, why not consensual incest between adults? Why is sex between an adult brother and sister more objectionable than sex between adult men? If a couple agrees, why not allow consensual adultery? Once non-marital sex is validated, how can we draw any line? Why shouldn’t gay liberation be followed by incest liberation?


William Bentley Ball was one of the nation's foremost Catholic constitutional lawyers. He died in 2000.

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