WASHINGTON — The Food and Drug Administration announced Tuesday
that it would scrap a decades-old lifetime prohibition on blood donation by gay
and bisexual men, a major stride toward ending what many had seen as a national
policy of discrimination.
However, the agency will continue to ban men who have had sex with a man in the
last year, saying the barrier is necessary to keep the blood supply safe, a move
that frustrated rights groups that were pushing for the ban to be removed
entirely.
The F.D.A. enacted the ban in 1983, early in the AIDS epidemic. At the time,
little was known about the human immunodeficiency virus, which causes the
disease, and there was no quick test to determine whether somebody had it. But
science — and the understanding of H.I.V. in particular — has advanced in the
intervening decades. On Tuesday the F.D.A. acknowledged as much, lifting the
lifetime ban but keeping in place a block on donations by men who have had sex
with other men in the last 12 months.
The F.D.A. rules on blood donation generally include very wide margins of error.
For example, it bars anyone who has traveled in areas where malaria is common
from giving blood for a year, even though malaria symptoms are almost
unmistakable — chills and fever — and virtually always appear within 40 days.
The agency also has a 12-month waiting period for heterosexuals who, among other
activities, have sex with prostitutes or with people who inject drugs.
Restrictions on donors were written when H.I.V. testing was slower and less
refined. Today, some tests can detect the virus in blood as little as nine days
after infection.
In written remarks, the agency said it was keeping the 12-month ban because
“compelling scientific evidence is not available at this time to support a
change to a deferral period less than one year while still ensuring the safety
of the blood supply.”
The shift puts the United States on par with many European countries, including
Britain, which adjusted its lifetime ban in favor of a 12-month restriction in
2011.
Most men’s health advocates called the move long overdue, and said that the
overall ban was not based on the latest science and that it perpetuated a stigma
about gay men as a risk to the health of the nation. Legal experts said the
change brought an important national health policy in line with other legal and
political rights for gay Americans, like permitting gay people to marry and to
serve openly in the military.
“This is a major victory for gay civil rights,” said I. Glenn Cohen, a law
professor at Harvard who specializes in bioethics and health. “We’re leaving
behind the old view that every gay man is a potential infection source.” He
said, however, that the policy was “still not rational enough.”
Indeed, some advocacy groups attacked the change as too incremental. Leaving in
place a 12-month ban essentially blocks any gay or bisexual man who is sexually
active from donating, erasing about half the population of potential donors and
perpetuating what rights groups say is tougher treatment for gay and bisexual
men.
G MHC, the advocacy group formerly known as Gay Men’s Health Crisis, called the
new policy “offensive and harmful.” AIDS United, a Washington-based lobbying
group, said that it was a “step forward,” but that it “continues to perpetuate
discrimination against gay and bisexual men.”
Today doctors have nucleic acid tests that can diagnose an H.I.V. infection
within nine to 11 days of exposure, and all blood donations have to be tested
before being shipped for transfusion.
“Many other Western countries had changed their policies, and I think the F.D.A.
has come to accept the science supporting a change to their policy also,” said
Debra Kessler, director of special donor services at the New York Blood Center.
She said blood centers across the country “have been talking to the F.D.A. for
years to encourage them to move forward.”
In a statement, the agency said that it had “carefully examined and considered
the scientific evidence” and that it intended to issue a draft guidance
detailing the change in 2015. An F.D.A. official told reporters that there was
not enough science to support lifting the 12-month ban, an assertion that men’s
health groups dispute.
“At this time we simply do not have the evidence to suggest that we can go to a
shorter period,” said Dr. Peter Marks, deputy director of the F.D.A.’s Center
for Biologics Evaluation and Research.
The agency’s decision seems to have been guided by data that emerged after
similar policy changes in other countries. For example, Dr. Marks cited data
from Australia, where studies have shown no increased risk to the blood supply
after the country changed the ban from lifetime to a year.
Other groups applauded the shift, pointing out that it had been pushed for years
by medical experts, blood banks and gay men’s health organizations that argued
that the policy had long outlived its usefulness for safety in the blood supply.
“A lot has changed since 1983,” said Sean Cahill, director of health policy
research at the Fenway Institute, a research and advocacy center in Boston. He
called the shift “an important incremental step toward a better policy. That’s
how policies often change — incrementally.”
While the burden of H.I.V. in the United States falls disproportionately on gay
and bisexual men — Mr. Cahill cited estimates from the Centers for Disease
Control and Prevention that two-thirds of an estimated 50,000 new H.I.V.
infections in the United States each year occur among men who have sex with men
— the vast majority of gay and bisexual men are not H.I.V. positive. The
1980s-era policy essentially ignored that fact by counting every single man who
had had sex with a man since 1977 as suspect.
About 8.5 percent of American men — or about 10 million people — report having
had sex at least once with a man since turning 18, according to the Williams
Institute at the University of California, Los Angeles. (Blood banks, however,
know that donors do not always tell the truth about their sexual activity on
questionnaires.) The institute has calculated that the rules change could add
about 317,000 pints of blood to the nation’s supply annually, an increase of 2
percent to 4 percent.
The new policy will exclude the 3.8 percent of American men who report having
had a male sexual partner in the past year, a group that could double the
potential new supply, the institute said.
The policy, which will go through a public comment period next year, comes at a
time when the nation’s blood supply is relatively stable, Ms. Kessler said, in
part because of changes in hospitals and ways of collecting blood.
Rights groups say that current policy is unfair because it blocks a sexually
active gay man from donating even if he has had only one sexual partner, has
protected sex, and has not been exposed to H.I.V., while it allows sexually
active heterosexual men and women who may have been exposed to H.I.V. to donate.
They also argue that the lifetime ban stigmatizes homosexuality, making it seem
like being gay is a risk in and of itself.
They say the policy should be more individualized, like Italy’s, in which
potential donors are interviewed to screen for higher-risk donors, like people
with multiple sexual partners or who report sex with intravenous drug users or
prostitutes.
Dr. Marks said the agency was putting a surveillance system into place that
would help the agency monitor the effect of the policy change.
Donald G. McNeil Jr.
contributed reporting from New York.
A version of this article appears in print
on December 24, 2014,
on page A1 of
the New York edition with the headline:
F.D.A. Easing Ban on Gays, to Let Some
Give Blood.
John G. Lawrence, whose bedroom encounter with the police in
Texas led to one of the gay rights movement’s signal triumphs, the Supreme
Court’s 2003 decision in Lawrence v. Texas, died at his home in Houston on Nov.
20, his partner said on Friday. He was 68.
The cause was complications of a heart ailment, said his partner, Jose Garcia.
Aside from a posting on a funeral home’s Web site that did not mention the
Supreme Court decision, Mr. Lawrence’s death apparently received no immediate
publicity. It came to light when a lawyer in the case, Mitchell Katine, sought
to reach Mr. Lawrence with an invitation to an event commemorating the ruling.
The Lawrence decision struck down a Texas law that made gay sex a crime and
swept away sodomy laws in a dozen other states. The decision reversed a
17-year-old precedent, Bowers v. Hardwick, which had ruled that there was
nothing in the Constitution to stop states from making it a crime for gay men to
have consensual sex at home.
But Justice Anthony M. Kennedy, writing for five justices in the 6-to-3 Lawrence
decision, said, “The petitioners are entitled to respect for their private
lives.”
“The state,” he wrote, “cannot demean their existence or control their destiny
by making their private sexual conduct a crime.”
Paul M. Smith, who argued in the Supreme Court on behalf of Mr. Lawrence, said
the decision “laid the foundation for all the good things that have happened
since,” including decisions from state courts endorsing same-sex marriage and
the repeal of the military’s policy forbidding gay men and lesbians from serving
openly.
The logic of the Lawrence decision, Justice Antonin Scalia wrote in dissent,
supported a constitutional right to same-sex marriage.
The case began on Sept. 17, 1998, when police investigating a report of a
“weapons disturbance” entered Mr. Lawrence’s apartment. They said they saw Mr.
Lawrence and Tyron Garner having sex and arrested them for violating a Texas law
prohibiting “deviate sexual intercourse with another individual of the same
sex.”
The two men were held overnight and each fined $200. Texas courts rejected their
constitutional challenges to the state law, relying on the Bowers decision.
In a new book, “Flagrant Conduct: The Story of Lawrence v. Texas,” which will be
published in March by W. W. Norton & Company, Dale Carpenter, a law professor at
the University of Minnesota, writes that the conventional understanding of what
happened that night is flawed.
In interviews for the book, police officers gave contradictory accounts of the
sex act they saw. Mr. Lawrence, for his part, told Professor Carpenter that he
and Mr. Garner, who died in 2006, had not had sex, then or ever, and were seated
perhaps 15 feet apart when the police arrived.
“If the police did not observe any sex,” Professor Carpenter wrote, “the whole
case is built on law enforcement misconduct that makes it an even more egregious
abuse of liberty than the Supreme Court knew.”
What is clear is that the arrest infuriated Mr. Lawrence.
“I don’t think he appreciated the constitutional issues,” said Mr. Katine, a
Houston lawyer who represented Mr. Lawrence. “He was upset about how he was
treated, physically and personally, that night. The fire stayed in him. When he
was vindicated in the Supreme Court, he felt he got justice.”
Suzanne B. Goldberg, who represented Mr. Lawrence as part of her work at Lambda
Legal, a national gay rights advocacy group, said Mr. Lawrence “was not your
typical test-case plaintiff.”
“He had not been active in the gay rights movement or even out as a gay man to
all of his co-workers and family,” said Professor Goldberg, who now teaches at
Columbia Law School. “Instead, this was something that happened to him. The
police came into his bedroom and put him into the middle of one of the most
significant gay rights cases in our time.”
John Geddes Lawrence Jr. was born on Aug. 2, 1943, in Beaumont, Tex. He served
four years in the Navy and worked as a medical technician until his retirement
in 2009. In addition to Mr. Garcia, he is survived by his brother, Charles W.
Lawrence, and a sister, Mary Jane Rodriguez, both of Kountze, Tex.
Mr. Lawrence attended the Supreme Court argument in his case, his lawyers
recalled, mingling with the people who had waited in line all night to see it,
alive with excitement, pride and a sense of history. “He was willing to be the
real-life face of injustice,” Mr. Katine said.
Mr. Lawrence reflected on his case years later in an interview with Professor
Carpenter. “Why should there be a law passed that only prosecutes certain
people?” he asked. “Why build a law that only says, ‘Because you’re a gay man
you can’t do this. But because you’re a heterosexual, you can do the same
thing’?”
Franklin E. Kameny, who transformed his 1957 arrest as a
“sexual pervert” and his subsequent firing from the Army Map Service into a
powerful animating spark of the gay civil rights movement, died on Tuesday at
his home in Washington. He was 86.
His death was confirmed by the United States Office of Personnel Management,
which formally apologized two years ago for his dismissal.
A half-century ago, Mr. Kameny was either first or foremost — often both — in
publicly advocating the propositions that there were homosexuals throughout the
population, that they were not mentally ill, and that there was neither reason
nor justification for the many forms of discrimination prevalent against them.
Rather than accept his firing quietly, Mr. Kameny challenged his dismissal
before the Civil Service Commission and then sued the government in federal
court. That he lost was almost beside the point. The battle against
discrimination now had a face, a name and a Ph.D. from Harvard.
Though he helped found the Mattachine Society of Washington, an early advocacy
group, Mr. Kameny was not content to organize solely within the gay community.
He welcomed and exploited the publicity that came from broader — if foredoomed —
political efforts, like running in 1971 for the delegate seat representing the
District of Columbia in the House of Representatives.
He also claimed authorship of the phrase “Gay is good” a year before the 1969
Stonewall uprising in New York, widely regarded as the first milestone in the
gay rights movement. Many of the tributes that began to appear on the Web on
Wednesday noted that Mr. Kameny’s death coincided with National Coming Out Day.
Mr. Kameny has been likened both to Rosa Parks and to Gen. George Patton, two
historical figures not frequently found in the same sentence. “Frank Kameny was
our Rosa Parks, and more,” Richard Socarides, the president of the advocacy
group Equality Matters, said on Wednesday. During the Clinton administration,
Mr. Socarides was the special assistant for gay rights in the White House,
outside which Mr. Kameny and others had picketed in 1965 to protest their
treatment by the government.
The Patton analogy was made by Dudley Clendinen and Adam Nagourney in their 1999
book “Out for Good: The Struggle to Build a Gay Rights Movement in America.”
(Mr. Nagourney is a reporter for The New York Times, and Mr. Clendinen is a
former Times reporter.)
“Franklin Kameny had the confidence of an intellectual autocrat, the manner of a
snapping turtle, a voice like a foghorn, and the habit of expressing himself in
thunderous bursts of precise and formal language,” the authors wrote. “He talked
in italics and exclamation points and he cultivated the self-righteous arrogance
of a visionary who knew his cause was just when no one else did.”
Franklin Edward Kameny was born May 21, 1925, in New York City. He entered
Queens College, served in the Army in the Netherlands and Germany during World
War II and was awarded his doctorate from Harvard in 1956. He was hired as an
astronomer the next year by the Army Map Service, but lasted only five months
when the government learned he had been arrested by the morals squad in
Lafayette Park, across from the White House, which was known as a gay cruising
ground.
At the time, under an executive order signed by President Dwight D. Eisenhower
in 1953,“sexual perversion” was considered grounds for dismissal from government
employment. Mr. Kameny contested his firing through level after level of legal
appeal, until the Supreme Court declined to hear his case in 1961.
Unable to get another job in his field, he became radicalized, he told Eric
Marcus, who interviewed him for the 1992 book “Making History: The Struggle for
Gay and Lesbian Equal Rights, 1945-1990.” Mr. Kameny said his personal manifesto
emerged from the petition he prepared for the Supreme Court.
“The government put its disqualification of gays under the rubric of immoral
conduct, which I objected to,” Mr. Kameny said. “Because under our system,
morality is a matter of personal opinion and individual belief on which any
American citizen may hold any view he wishes and upon which the government has
no power or authority to have any view at all. Besides which, in my view,
homosexuality is not only not immoral, but is affirmatively moral.
“Up until that time, nobody else ever said this — as far as I know — in any kind
of formal court pleading.”
After this loss, Mr. Kameny recognized that the American Psychiatric
Association’s classification of homosexuality as a sickness posed a high hurdle
to the movement.
“An attribution of mental illness in our culture is devastating, and it’s
something which is virtually impossible to get beyond,” he said to Charles
Kaiser, who interviewed him in 1995 for his book “The Gay Metropolis:
1940-1996.” He was among those who lobbied for its reversal.
In December 1973, the psychiatric association’s board of trustees approved a
resolution declaring that homosexuality, “by itself, does not necessarily
constitute a psychiatric disorder.”
Leading psychiatrists who believed otherwise, like Dr. Charles W. Socarides (the
father of Richard Socarides), pushed for a membership-wide referendum in the
hope of overturning the resolution. In April 1974, 5,854 of the association’s
roughly 20,000 members voted to support the trustees’ position, 3,810 to oppose
it. The result left Mr. Kameny “ecstatic,” he said.
As for his firing, Mr. Kameny lived long enough to receive and accept an apology
from John Berry, the director of the United States Office of Personnel
Management, successor to the Civil Service Commission. Speaking of Mr. Kameny on
Wednesday, Mr. Berry said:
“He helped make it possible for countless of patriotic Americans to hold
security clearances and high government positions, including me.”
Dr. Alfred
M. Freedman, a psychiatrist and social reformer who led the American Psychiatric
Association in 1973 when, overturning a century-old policy, it declared that
homosexuality was not a mental illness, died on Sunday in Manhattan. He was 94.
The cause was complications of surgery to treat a fractured hip, his son Dan
said.
In 1972, with pressure mounting from gay rights groups and from an increasing
number of psychiatrists to destigmatize homosexuality, Dr. Freedman was elected
president of the association, which he later described as a conservative “old
boys’ club.” Its 20,000 members were deeply divided about its policy on
homosexuality, which its Diagnostic and Statistical Manual of Mental Disorders
II classified as a “sexual deviation” in the same class as fetishism, voyeurism,
pedophilia and exhibitionism.
Well known as the chairman of the department of psychiatry at New York Medical
College and a strong proponent of community-oriented psychiatric and social
services, Dr. Freedman was approached by a group of young reformers, the
Committee of Concerned Psychiatrists, who persuaded him to run as a petition
candidate for the presidency of the psychiatric association.
Dr. Freedman, much to his surprise, won what may have been the first contested
election in the organization’s history — by 3 votes out of more than 9,000 cast.
Immediately on taking office, he threw his support behind a resolution, drafted
by Robert L. Spitzer of Columbia University, to remove homosexuality from the
list of mental disorders.
On Dec. 15, 1973, the board of trustees, many of them newly elected younger
psychiatrists, voted 13 to 0, with two abstentions, in favor of the resolution,
which stated that “by itself, homosexuality does not meet the criteria for being
a psychiatric disorder.”
It went on: “We will no longer insist on a label of sickness for individuals who
insist that they are well and demonstrate no generalized impairment in social
effectiveness.”
The board stopped short of declaring homosexuality “a normal variant of human
sexuality,” as the association’s task force on nomenclature had recommended.
The recently formed National Gay Task Force (now the National Gay and Lesbian
Task Force) hailed the resolution as “the greatest gay victory,” one that
removed “the cornerstone of oppression for one-tenth of our population.” Among
other things, the resolution helped reassure gay men and women in need of
treatment for mental problems that doctors would not have any authorization to
try to change their sexual orientation, or to identify homosexuality as the root
cause of their difficulties.
An equally important companion resolution condemned discrimination against gays
in such areas as housing and employment. In addition, it called on local, state
and federal lawmakers to pass legislation guaranteeing gay citizens the same
protections as other Americans, and to repeal all criminal statutes penalizing
sex between consenting adults.
The resolution served as a model for professional and religious organizations
that took similar positions in the years to come.
“It was a huge victory for a movement that in 1973 was young, small, very
underfunded and had not yet had this kind of political validation,” said Sue
Hyde, who organizes the annual conference of the National Gay and Lesbian Task
Force. “It is the single most important event in the history of what would
become the lesbian, gay, bisexual and transgender movement.”
In a 2007 interview Dr. Freedman said, “I felt at the time that that decision
was the most important thing we accomplished.”
Alfred Mordecai Freedman was born on Jan. 7, 1917, in Albany. He won
scholarships to study at Cornell, where he earned a bachelor’s degree in 1937.
He earned a medical degree from the University of Minnesota in 1941 but cut
short his internship at Harlem Hospital to enlist in the Army Air Corps.
During World War II he served as a laboratory officer in Miami and chief of
laboratories at the Air Corps hospital in Gulfport, Miss. He left the corps with
the rank of major.
After doing research on neuropsychology with Harold E. Himwich at Edgewood
Arsenal in Maryland, he became interested in the development of human cognition.
He underwent training in general and child psychiatry and began a residency at
Bellevue Hospital in Manhattan, where he became a senior child psychiatrist.
He was the chief psychiatrist in the pediatrics department at the Downstate
College of Medicine of the State University of New York for five years before
becoming the first full-time chairman of the department of psychiatry at New
York Medical College, then in East Harlem and now in Valhalla, N.Y.
In his 30 years at the college he built the department into an important
teaching institution with a large residency program. He greatly expanded the
psychiatric services offered at nearby Metropolitan Hospital, which is
affiliated with the school and where he was director of psychiatry.
To address social problems in East Harlem, Dr. Freedman created a treatment
program for adult drug addicts at the hospital in 1959 and the next year
established a similar program for adolescents. These were among the earliest
drug addiction programs to be conducted by a medical school and to be based in a
general hospital. He also founded a division of social and community psychiatry
at the school to serve neighborhood residents.
With Harold I. Kaplan, he edited “Comprehensive Textbook of Psychiatry,” which
became adopted as a standard text on its publication in 1967 and is now in its
ninth edition.
During his one-year term as president of the American Psychiatric Association,
Dr. Freedman made the misuse of psychiatry in the Soviet Union one of the
organization’s main issues. He challenged the Soviet government to answer
charges that it routinely held political dissidents in psychiatric hospitals,
and he led a delegation of American psychiatrists to the Soviet Union to visit
mental hospitals and confer with Soviet psychiatrists.
After retiring from New York Medical College, Dr. Freedman turned his attention
to the role that psychiatry played in death penalty cases. With his colleague
Abraham L. Halpern, he lobbied the American Medical Association to enforce the
provision in its code of ethics barring physicians from taking part in
executions, and he campaigned against the practice of using psychopharmacologic
drugs on psychotic death-row prisoners so that they could be declared competent
to be executed.
In addition to his son Dan, of Silver Spring, Md., he is survived by his wife,
Marcia; another son, Paul, of Pelham, N.Y.; and three grandchildren.
At noon on Sunday, thousands of marchers filled Fifth Avenue for New York
City’s annual gay pride parade. Nearly six miles away, on the sixth floor of a
nursing home in Brooklyn, the frail, white-haired woman in beige pajamas and
brown slippers in Room 609 sat motionless at the edge of her bed, staring out
her window.
She touched the medallion on her necklace — an image of St. Jude, the patron
saint of lost causes — and fiddled with one of her rings.
“This one,” she said of the ring on a pinky finger, “I hit a guy so hard I
knocked the stone out, and I hadn’t gotten around to put it back yet.”
She had forgotten that the gay pride march was Sunday. Her mind and her memory
are not as sharp as her wit and her tongue. She said she had been living there,
at the Oxford Nursing Home, for years (she arrived in April). She was not sure
how old she was (she will be 90 in December).
The woman in Room 609, Storme DeLarverie, has dementia. She is but one anonymous
elderly New Yorker in a city with thousands upon thousands of them. And many of
those who marched down Fifth Avenue on Sunday would be hard pressed to realize
that this little old lady — once the cross-dressing M.C. of a group of
drag-queen performers, once a fiercely protective (and pistol-packing) bouncer
in the city’s lesbian bars — was one of the reasons they were marching.
Ms. DeLarverie fought the police in 1969 at the historic riot at the Stonewall
Inn in Greenwich Village that kicked off the gay rights movement. The first gay
pride parade in 1970 was not a parade at all but a protest marking the one-year
anniversary of the Stonewall uprising.
Some writers believe Ms. DeLarverie may have been the cross-dressing lesbian
whose clubbing by the police was the catalyst for the riots (the woman has never
been identified). While others are adamant that Ms. DeLarverie was not that
woman, no one disputes that she was there, and no one doubts that the woman who
had been fighting back all her life fought back in the summer of 1969.
At one point on Sunday, she said she was not struck by the police. At another
moment, she said a police officer had hit her from behind. “He wound up flat on
his back on the ground,” said Ms. DeLarverie, a member of the Stonewall
Veterans’ Association. “I don’t know what he hit me with. He hit me from behind,
the coward.”
Ms. DeLarverie has struggled in recent years with a confluence of housing,
mental health and legal issues. In 2009, a social services group, the Jewish
Association for Services for the Aged, was appointed her legal guardian by a
judge. In March, she was hospitalized after she was found disoriented and
dehydrated at the Chelsea Hotel, her home for decades. No one occupies her room
on the seventh floor of the hotel, but it remains unclear if she will ever
return.
A small group of friends, including some of her neighbors at the Chelsea Hotel,
visit her regularly. A social worker with the nonprofit group SAGE, which
provides services to lesbian, gay, bisexual and transgender older people, has
been assisting Ms. DeLarverie since 1999, when she was at risk of eviction from
the hotel.
Some of her friends said they had been frustrated by the way she was treated by
the authorities and others, and they expressed disappointment that Ms.
DeLarverie’s troubles have not been a widespread concern for many gay and
lesbian activists.
“I feel like the gay community could have really rallied, but they didn’t,” said
Lisa Cannistraci, a longtime friend of Ms. DeLarverie’s who is the owner of the
lesbian bar Henrietta Hudson, where Ms. DeLarverie worked as a bouncer.
“The young gays and lesbians today have never heard of her,” Ms. Cannistraci
said, “and most of our activists are young. They’re in their 20s and early 30s.
The community that’s familiar with her is dwindling.”
Ms. DeLarverie’s friends said they were disturbed because she spent most of her
days inside the nursing home and they had not been allowed to take her outside,
even for walks.
Leah Ferster, chief services officer for the Jewish Association for Services for
the Aged, said she was not aware that that was a concern among her friends. “We
have to make sure she’s medically capable and able, and if that was true, then
we would be glad to speak with her friends and see if we can come up with a safe
plan and have her go out for a few hours,” she said.
Ms. DeLarverie’s first name is pronounced STORM-ee, like the weather, but in
Room 609 on Sunday, she was calm, chatty, graceful. Her life has been
flamboyant, boundary-breaking, the stuff of pulp fiction.
Friends say she worked for the mob in Chicago. The drag-queen group she
performed with decades ago, known as the Jewel Box Revue, regularly played the
Apollo in Harlem (she dressed as a man and the men dressed as women). She was
photographed by Diane Arbus. She carried a straight-edge razor in her sock, and
while some merely walked to and from the gay and lesbian bars in the Village,
friends said, she patrolled.
Sitting at the edge of her bed, her mind turned again to the parade, where, in
the past, she had been a fixture. She said she had a message for those who took
part in the celebration. “Just be themselves, like they’ve always been,” she
said. “They don’t have to pretend anything. They’re who they are.”
Ms. DeLarverie asked what time it was, and what time the march started. At one
point, she took off her slippers and seemed to look for her shoes. “I think they
started already,” she said. “They’re probably wondering where I am.”
WASHINGTON, June 26 — The Supreme Court struck down a Texas law today
that forbids homosexual sex, and reversed its own ruling in a similar Georgia
case 17 years ago, thus invalidating antisodomy laws in the states that still
have them.
Justice Anthony M. Kennedy, writing for the majority in the 6-to-3 Texas
decision, said that gay people "are entitled to respect for their private
lives," adding that "the state cannot demean their existence or control their
destiny by making their private sexual conduct a crime."
Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G.
Breyer agreed with Justice Kennedy. Justice Sandra Day O'Connor sided with the
majority in its decision, but in a separate opinion disagreed with some of
Justice Kennedy's reasoning.
Justice Antonin Scalia wrote the dissent and took the unusual step of reading it
aloud from the bench this morning, saying "the court has largely signed on to
the so-called homosexual agenda," while adding that he personally has "nothing
against homosexuals." Joining Justice Scalia's dissent were Chief Justice
William H. Rehnquist and Justice Clarence Thomas.
Justice Scalia said he believed the ruling paved the way for homosexual
marriages. "This reasoning leaves on shaky, pretty shaky, grounds state laws
limiting marriage to opposite-sex couples," he wrote.
The court's actions today would also seem to overturn any law forbidding sodomy,
no matter whether it deals with homosexual or heterosexual activity.
The case, Lawrence v. Texas, No. 02-102, was an appeal of a ruling by the Texas
Court of Appeals, which had upheld the law barring "deviate sexual intercourse."
The plaintiffs, John G. Lawrence and Tyron Garner of Houston, were arrested in
1998 after police officers, responding to a false report of a disturbance,
discovered them having sex in Mr. Lawrence's apartment. Mr. Lawrence and Mr.
Garner were jailed overnight and fined $200 each after pleading no contest to
sodomy charges.
In its ruling today in the Texas case and its revisiting of the 1986 Georgia
case, the Supreme Court made a sharp turn.
In 1986, the justices upheld an antisodomy law in Georgia, prompting protests
from gay rights advocates and civil liberties groups. But in the 17 years since,
the social climate in the United States has changed, broadening public
perceptions of gays and softening the legal and social sanctions that once
confronted gay people. Until 1961, all 50 states banned sodomy. By 1968, that
number had dwindled to 24 states, and by today's ruling, it stood at 13.
Even though the court upheld the Georgia antisodomy statute — which had
applied to heterosexual as well as homosexual conduct — a Georgia court
later voided it. But the justices' ruling on the legal principle behind the
Georgia statute continued to stand, so today the court, voting 5 to 4, issued a
new ruling overturning its 1986 decision in the Georgia case.
Of the three current justices who were on the court when it initially ruled in
the Georgia case, in 1986, Justices Rehnquist and O'Connor voted to uphold the
Georgia law in 1986 and Justice Stevens voted to strike it down.
The Lambda Legal Defense and Education Fund, which works on behalf of gay rights
advocates and related groups, brought the appeal of the Texas ruling to the
court, arguing that it violated equal protection and due process laws. It
described sexual intimacy in the home as an aspect of the "liberty" protected by
the Constitutional guarantee of due process.
Today's ruling "will be a powerful tool for gay people in all 50 states where we
continue fighting to be treated equally," the Lambda fund's legal director, Ruth
Harlow, said. "For decades, these laws have been a major roadblock to equality.
They've labeled the entire gay community as criminals and second-class citizens.
Today, the Supreme Court ended that once and for all."
Some lawyers for the plaintiffs wept in the courtroom as the court made public
its decision today. Several legal and medical groups had joined gay rights and
human rights groups in their challenge to the Texas law.
But traditional-values conservatives reacted angrily to the court's actions,
particularly regarding the prospect that they could open the legal door to gay
marriages.
"If there's no rational basis for prohibiting same-sex sodomy by consenting
adults, then state laws prohibiting prostitution, adultery, bigamy, and incest
are at risk," Jan LaRue, chief counsel for Concerned Women for America, a
conservative group, said. "No doubt, homosexual activists will try to bootstrap
this decision into a mandate for same-sex marriage. Any attempt to equate sexual
perversion with the institution that is the very foundation of society is as
baseless as this ruling."
Nonetheless, today's ruling was not surprising, given the tone of the justices'
questions during oral arguments before the court on March 26, when it appeared
that a majority of the court was even then ready to overturn the Texas law.
Most of the remaining states with antisodomy laws forbid anal or oral sex among
consenting adults no matter their sex or relationship. Texas is one of only four
states whose law distinguished between heterosexual and homosexual consensual
sex.
In the March arguments, the plaintiffs' lawyer, Paul M. Smith, chose to argue
that while the concept of gay rights as such did not have deep historical roots,
a libertarian spirit of personal privacy did reach back to the country's
beginnings.
"So you really have a tradition of respect for the privacy of couples in their
home, going back to the founding," Mr. Smith said. He noted that three-quarters
of the states had repealed their criminal sodomy laws for everyone, "based on a
recognition that it's not consistent with our basic American values about the
relationship between the individual and the state."
Justice Scalia retorted, "Suppose that all the states had laws against flagpole
sitting at one time" and subsequently repealed them. "Does that make flagpole
sitting a fundamental right?"
The district attorney for Harris County, Tex., Charles A. Rosenthal Jr., argued
that "Texas has the right to set moral standards and can set bright-line moral
standards for its people." He asked the court "not to disenfranchise 23 million
Texans who ought to have the right to participate in questions having to do with
moral issues."
But in the ruling today, Justice Sandra Day O'Connor wrote, "A law branding one
class of persons as criminal solely based on the state's moral disapproval of
that class and the conduct associated with that class runs contrary to the
values of the Constitution and the Equal Protection Clause, under any standard
of review."
