LGBTQ Pride is a Protest.

Ari Ezra Waldman

fundamentals June 16, 2021

For much of the last 100 years, sexual activity between queer people in the United States was a crime. In fact, most of us were alive when the police could still arrest people for engaging in “sodomy.” Sodomy is a broad term that refers to any sex other than vaginal intercourse, but was almost always applied to gay men engaging in anal or oral sex. Some US states forced those convicted under anti-sodomy laws to register as sex offenders. Other states humiliated gay men by having their names published in the local paper. Lives were destroyed, and it was all perfectly legal.

The Right To Intimate Association

It wasn’t until 2003 that the US Supreme Court – in a decision fittingly issued during LGBTQ Pride Month – finally put an end to this dark history. In Lawrence v Texas, the Court affirmed that queer people have a right to “intimate association,” or, in other words, to have sex with someone of the same sex without the state’s vice squad or morality police breaking down the door. The story of how we got there is a perfect summary of the spirit of LGBTQ pride: resistance, protest, and direct action.

Early Anti-Sodomy Laws

Early anti-sodomy laws weren’t anti-queer per se. They were moralistic, reflecting the era’s obsession with sex, and capitalistic, reflecting cities’ obsession with “cleaning up” their downtowns for family-friendly businesses. They were written to apply to same-sex and opposite-sex couples alike. Sodomy was labeled a crime of “moral turpitude” (along with bigamy, adultery, incest and public indecency), legalese for those in power view these activities as distasteful, immoral and should be banned. These laws were justified as protecting “public morals” generally, but starting in the 1930s, they were used most vigorously to target members of queer communities that emerged from the shadows during Roaring Twenties. Gay men were considered threats to traditional sex norms. Worse yet, they were viewed as sexual predators scouring for children to corrupt. False stereotypes became the justification for criminal law.

Still, arrests for sodomy were rare. Private consensual sodomy was hard to spot. Arrests required police to find men who met in public and then follow them into their homes or peep through windows. But even though there were few actual charges, the harm was substantial. When the law makes it a crime to do something that society associates with a specific community, members of that community become presumptive criminals. And when you’re a presumptive criminal, the state can pretty much do anything it wants to you. Anti-sodomy laws justified a lot of anti-queer discrimination. Schools banned gay clubs. In the professional world, these laws justified workplace discrimination, housing discrimination, healthcare discrimination, and more. They gave license to police harassment, raids on bars, and the use of any legal tool to push queer people to society’s margins. It kept queer ideas in the closet. If sodomy were still a crime, you can bet that there would be no Future Method, no Bespoke Surgical, and few professionals trained in queer health.

In 1961 Illinois became the first US state to repeal its sodomy law. By the end of the 1970s, 20 more states followed suit. None of that happened magically. Homophile activists (that’s what early queer rights’ pioneers called themselves at the time) built nation-wide networks of engaged queer people by challenging obscenity laws that banned “obscene” (read: queer) content in the mail. These networks then protested against police brutality (like at NYC’s Stonewall Inn and LA’s Black Cat Tavern), lobbied city councils and state legislators, and even got some openly gay men elected to public office (like Harvey Milk). Sodomy laws were falling like dominoes because queer activist leaders and their allies put in the work.

Fighting To Repeal Anti-Sodomy Laws Nation-wide

By the early 1980s, the moment seemed ripe for a nation-wide push to repeal all anti-sodomy laws. But in 1986, the Supreme Court decided the case of Bowers v. Hardwick. Bowers was the latest in a series of challenges to state anti-sodomy laws. Gay rights advocates argued that because they policed private conduct, anti-sodomy laws violated the constitutional right to privacy. The increasingly conservative Court (after years of appointments by Republican Presidents Richard Nixon and Ronald Reagan) did not agree. The Bowers opinion said that the argument for repealing anti-sodomy laws wasn’t about privacy; rather, it was about “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy.” Framed this way, it was easy for the Court to say no to a nation-wide ban on anti-sodomy laws, and in a 5-4 decision, that is exactly what they did. It was not until 2003 that Lawrence v. Texas struck down anti-sodomy laws in their entirety.

Challenges to anti-sodomy laws were never really about sex. Rather, these were fights for justice and equality. They were about ending second-class citizenship, ending subjugation at the hands of the morals police, and ending decades of marginalization.

And the same is true of our current fights against anti-trans bathroom laws, laws banning adolescent hormone therapy, and states banning trans people in sports. The fights over these laws are not just about bathrooms, or healthcare, or soccer games (although the state’s insistence on denying trans people any of those does real harm). Rather, they are about citizenship, about our place in this world, and about the dignity of our humanity.

These fights have always faced extraordinary headwinds, but they seem worse today. For four years, an anti-queer administration, aided by a pliant, anti-queer Senate, appointed 234 federal judges, including three Supreme Court justices. One of those appointees is a religious devotee who replaced an iconic ally of the queer community. And as a result, federal law is likely to be increasingly hostile. If these current justices were on the Court in 2003, it’s hard to imagine Lawrence coming out the way it did. That’s how precarious our rights are.

How You Can Do Your Part & Advocate For LGBTQ Rights

So what should we do about it? Get in the game. Engage, organize, and vote, even for local and state races. Protest. Volunteer for a queer rights advocacy group like Lambda Legal or the Transgender Legal Defense Fund. Whatever you do, do it with the urgency of someone who, only a few years ago, could be thrown in jail just for exercising your right to express your love.

About the author

Ari Ezra Waldman is a law professor at Northeastern University. He has written amicus briefs in several LGBTQ rights cases and is the founder of @Legally_Queer, an educational and advocacy social media account highlighting queer legal history. He earned his PhD from Columbia University, JD from Harvard Law School, and AB magna cum laude from Harvard College.

The views expressed in this article intend to highlight alternative studies and induce conversation. They are the views of the author and do not necessarily represent the views of Future Method, and are for informational purposes only, even if and to the extent that this article features the advice of physicians and medical practitioners. This article is not, nor is it intended to be, a substitute for professional medical advice, diagnosis, or treatment, and should never be relied upon for specific medical advice.

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