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Evolving Equality In America

Jim Burroway

June 27th, 2011

We’ve certainly come a long way over the last half-century. In 1960, homosexuality was a criminal act in every state and territory in the union. By 2000, when Vermont enacted civil unions, more than a third of the U.S. population lived in states where gay people were still legally criminals. All that change of course with the 2003 Lawrence v. Texas decision. Gay people were no longer criminals, but they weren’t recognized in any other way either.

The past decade has been a very slow march toward correcting that. Nearly as many couples today can acquire at least some minimal protection and recognition of their relationships as were criminalized a decade ago, but full marriage equality remains relatively elusive. We’ve been celebrating the fact that with New York becoming the sixth state to provide for full marriage equality, the population in which the option is open to them has more than doubled. But it’s from just five percent to eleven. About the same percentage as those who weren’t subject to arrest in 1973, thirty years before Lawrence v. Texas. We can only hope it won’t take another thirty years from today to see full marriage equality as the law of the land everywhere.



June 27th, 2011 | LINK

Jim, I’m curious about something. As I understand it, when SCOTUS “strikes down” a law after finding it unconstitutional (i.e., Lawrence v Texas), those laws remain on the books until and unless repealed by legislative act.

Therefore, isn’t it improper to say that certain sexual acts between same-sex partners REMAIN a criminal act in quite a few states? I do not believe that Texas nor Virginia, for example, have repealed their anti-sodomy laws.

While convictions would most likely not find success upon appeal into the federal courts, it is absolutely possible for individuals to be arrested by an aggressive officer, charged by a bigot prosecutor and (theoretically) convicted by a redneck judge, pending appeal. I’m thinking Sweet Home, Alabama, is a good candidate where this could easily happen.

Am I wrong about that?

And if I am not, we MUST continue to press for the actual legislative repeal of each such statute. In many places, right-wing bigots continue to use the argument that we are “criminals” under the laws of their states. As I recall, a Virginia legislator did this just a few weeks ago when criticizing the flying of the Pride flag at the Richmond Federal Reserve.

June 27th, 2011 | LINK

That a pretty shameful graphic of the Land of the Free and the home of the Brave.

Until the entire graph is green Lady Liberty will be a shining beacon of hypocrisy and shame.

June 27th, 2011 | LINK

Regarding the green stat, Calif has more people than the 6 states on the east coast combined @ approx 38.5 million. That will shoot us up near the 20% mark when Ca is vindicated.
Being from the oh so “cool” “laid back” west coast, I’m a bit miffed at our east coast bros/sis enjoying the wedding cake years before us. East over west; much more progressive than I ever would have imagined.
Maybe Ca got too laid back. Staring at gorgeous sunsets beautiful beaches and God gifted surfer boys ala smokin pot, can tend to take the eye off the prize.

Tony P
June 27th, 2011 | LINK

We are most definitely turning the corner on the issue. Now that NY has marriage equality people will see that the sky hasn’t fallen.

And of course NOM wants to plunk at a minimum $2 million into NY to defeat Republicans who supported marriage equality. That is going to backfire on them. I think we’re seeing NOM at the point of regression to the mean here.

June 27th, 2011 | LINK


Laws struck down by the Supreme Court remain in state statutes, in some cases, as a sort of “f*ck you” to the federal government. The laws ultimately can’t be enforced, but they can sit on the books and narrow their eyes at Washington. It’s legal immaturity.

But whether persons could be charged and prosecuted under them, in a kind of legal charade, is a good question to raise, and I don’t know the answer.

Many times, state legislatures will do a sort of spring cleaning of their statutes, and officially repeal dead and contradicted laws.

June 27th, 2011 | LINK


When a law is ruled unconstitutional, it becomes unenforceable, regardless of whether it is on the books. States may not repeal such laws for many reasons: too lazy to bother, as an act of defiance, in hopes that the SCOTUS may reverse itself in the future, etc. However, if any judge/prosecutor/police officer/other official tried to charge someone with a law that had been ruled unconstitutional, they would be opening themselves up for a lawsuit and possibly other legal actions.

However, a law generally gets repealed when it becomes an embarrassment (I believe AL didn’t repeal its anti-miscegenation laws until 2000).

June 27th, 2011 | LINK

“When a law is ruled unconstitutional, it becomes unenforceable, regardless of whether it is on the books.”

Yes and no. Because it is still on the book, police can — and do — arrest people. Of course, the prosecutor SHOULD refuse to press charges, but prosecutors being prosecutors, they sometimes negotiate the dismissal to get conviction on other charges.

There are several cases across the country being litigated. In one, police arrested BOTH parties in a domestic violence case because they both “admitted” to the felony of having sex.

June 27th, 2011 | LINK

Maryland also does not perform same-sex marriages, but it recognizes same-sex marriages performed in other states (and Washington D.C.). There should still be some pink on the graph.

June 27th, 2011 | LINK

@Soren456, @ken, @BobN: Thanks all for your replies.

If nothing else, you’ve given proof to my concern that we aren’t DONE on the criminal side until these states repeal their legislative bigotry.

That they DON’T enforce and that they SHOULDN’T enforce does not mean that the laws are irrelevant. In some states, I believe, you can be required to register as a sex offender during the period between arrest and finalization of any criminal proceedings.

We’re not done. That’s my point. Even if marriage passes in all 50 states. These neanderthal statutes of codified religious bigotry must be driven out of existence.

June 27th, 2011 | LINK

When Lawrence v. Texas was decided, Justice Scalia threw something of a tantrum in his dissent and predicted that the decision would lead to gay marriage. I realize that I run the risk of confusing correlation with causality here, and definitely never expected to type this particular phrase, but it looks like he might have been right about that.

June 28th, 2011 | LINK

This chart is a helpful way of seeing what has changed in 50 years. It would be too complicated to display all of the local and state nondiscrimination laws that have passed in these decades. Or the corporate nondscrimination policies that have been put in place. Or the admittedly few religious bodies whose positions on LGBT inclusion have changed (but there are some).

Marriage equality is not the only area of progress. These other areas still matter and should not be abandoned to make marriage equality the only goal. Getting fired for being gay is still possible. Sexual orientation is not a protected class in federal law or in most states.

Reed Boyer
June 28th, 2011 | LINK

Congrats, JB – this made the Maddow blog.

Timothy Kincaid
June 28th, 2011 | LINK

Actually, James, there are quite a few religious changes to varying degrees:

Episcopal Church, The United Church of Christ, Reform Judaism, Reconstructionist Judaism, The Evangelical Lutheran Church in America, the Presbyterian Church (USA), for example.

All have taken very strong pro-gay shifts. And the United Methodist Church (the third largest US denomination behind the Catholic Church and the Southern Baptist Convention) is close to follow.

June 29th, 2011 | LINK

Virginia’s legislature rejected an attempt by Equality Virginia to revise the anti-sodomy statute (which includes bestiality and forcible “crimes against nature”) to clarify that consensual acts between adults in private were no longer criminalized.

Sweet home, Virginia.

However, in 2004 the Virginia Supreme Court invalidated the enforcement of Virginia’s “fornication” law that criminalized any consensual adult private sexual act outside of legally recognized marriages in Virginia.

There are still many ways in which the sodomy statutes of Virginia (and likely other states) continue to create legal disparities between people who engage in queer vs. non-queer sex, even though consensual private, adult, non-commercial acts in private are no longer criminalized. For example, if someone solicits a sex worker for “sodomy” versus penile-vaginal intercourse, that’s a heavier penalty. Because anyone theoretically, regardless of sexual orientation, could solicit the same act that would count as “sodomy” the state could claim the laws do not intend to more harshly punish same-sex sexual behavior, but the reality is that sex acts which are more harshly punished are more likely to be engaged in between those of the same sex.

Thus queer folk are more likely to be convicted and stigmatized as sex offenders.

I’m not a supporter of legalizing sex work, but I absolutely oppose the ways these laws continue to more harshly punish queers de facto.

We still have a long way to go.

Lawrence vs. Texas was a good start.

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