Pride month is nearly upon us. As we get ready for the parades, performances, and joyful socialization that millions of people will engage in during June, I think it is worth writing this piece to remind people of one of the primary factors that led to the Stonewall riots: anti-sodomy laws.
Yes, the United States has an extensive history of outlawing gay sex, and LGBTQ+ people were frequently prosecuted and even institutionalized for what was viewed as lewd and illicit behavior, but in reality was normal sexual behavior between consenting adults.
Anti-sodomy laws were at their peak of enforcement in the 1950s and 1960s due to the witch hunt orchestrated by Roy Cohn, who alleged that LGBTQ+ individuals were communist sympathizers. While there was absolutely no evidence to support this claim, and Cohn’s efforts excoriated thousands of LGBTQ+ people, it was well-known that Roy Cohn was closeted and had sex with men up until his death.
The Gay Liberation movement of the 1970s, following the 1969 Stonewall Riots, which would lay the foundation for the modern Pride movement, led to a decrease in anti-sodomy laws being enforced, as well as cross-dressing bans being deemed unconstitutional. However, it took two rounds at the Supreme Court before the highest court in the United States officially declared that consenting adults could have sex with people of the same gender without legal recourse.
John Lawrence was arrested in 1999 after police responded to a false domestic disturbance report and allegedly found him engaging in consensual sexual intercourse with another man in his Texas home. Both men were arrested and charged with a misdemeanor under Texas’s anti-sodomy laws. After lower courts in Texas upheld the law, Lawrence appealed his case to the Supreme Court, in Lawrence v. Texas, and the law was struck down as unconstitutional. The majority opinion was that intimate sexual behavior, between consenting adults, was protected by substantive due process under the due process clause of the Fourteenth Amendment.
The decision was a surprise to many legal observers who expected the Court to uphold precedent from the 1986 decision in Bowers v. Hardwick. The majority opinion in that case, written by Justice Byron White was that Roe v. Wade had only recognized a fundamental right to engage in procreative sexual behavior, and the fact that the government had long held the position that gay sex was immoral was enough to argue against the claim that a person has a fundamental right to have consensual sex with a person of the same gender.
In 2022, following the ruling in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, Justice Clarence Thomas stated that, since the court revisited Roe v. Wade, Lawrence v. Texas should also be revisited, as the decisions in both cases rested on the same constitutional premise: the right to privacy and in his opinion that since there is no constitutional right to have an abortion, there is no constitutional right to consensual gay sex.
Is it possible that the Supreme Court will actually revisit Lawrence? Absolutely. Given how right-wing the Court has become and how the Court increasingly favors Christian groups, especially in rulings that align with Christian nationalist ideology.
When and how? Most legal experts predict that a case attempting to restrict access to contraceptives is what would likely lead to the demise of Lawrence. In his concurring opinion in Dobbs, Justice Clarence Thomas not only stated that Lawrence should be revisited, but also Griswold v. Connecticut, as Griswold was the ruling that struck down Connecticut’s law banning contraceptives because it violated the constitutional right to marital privacy.
Given how many anti-abortion resources have been redirected to these efforts following Dobbs, and the rise of Christian nationalism in the United States, it isn’t unrealistic to assume that it is a matter of time before such a case is taken up for consideration. If the Supreme Court rules in that case that Griswold was incorrectly decided and it is struck down, Lawrence will fall like a domino, and anti-sodomy laws will be reinstated in at least twelve states.