4 min

Will the US beat Canada in gay rights?

We might be in the lead now, but Americans know about freedom

Credit: Xtra files

Toronto may be the new gay marriage capital of the world, but following a recent ruling of the US Supreme Court striking down a sodomy law, Texas has since managed to get on the list of possible gay honeymoon destinations. That’s right, gay folks can now actually have sex in Texas.

The June ruling, while demonstrating how far ahead Canadians are when it comes to the legal treatment of gay and lesbian people, also demonstrates that the American approach to gay rights might very well have better results in the long run.

Canada is definitely ahead right now. Down there in the so-called land of the free, many US states still had sodomy laws, that is, laws criminalizing anal and oral sex. Some of them, including Texas, only criminalized gay sodomy or in the language of the law, “deviate sexual intercourse.”

As if the law itself wasn’t bad enough, the facts of the case are even worse. One night in the fall of 1998, John Lawrence was having sex with another man, Tyron Garner, in the privacy of his own home when the cops arrived and charged them both with deviate sexual intercourse. (A neighbour had called the police, complaining falsely about a weapons disturbance.) Both Lawrence and Garner were convicted.

They challenged the law on the ground that it violated their constitutional rights to privacy and equal protection.

But there was a little problem. In the 1980s, the US Supreme Court had upheld Georgia’s sodomy law from a similar challenge in the infamous case of Bowers versus Hardwick. While Georgia and a number of other states had since abandoned the practice of criminalizing anal sex, the Bowers decision said that states still could if they wanted.

This Texas challenge put Bowers versus Hardwick back on trial. If the court was going to strike down the sodomy law, it would have to admit it was wrong, and overrule its earlier decision.

It did. The majority of justices, in a decision written by Justice Anthony Kennedy (a Ronald Reagan appointment who usually votes with the conservatives on the court), overruled Bowers and held that the Texas sodomy law was unconstitutional.

In the court’s view, it was all about the right of individuals to make choices about their intimate lives. And it’s this interesting point of view that separates US law from Canadian.

“The case involve[s] two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime,” wrote Kennedy.

Justice Scalia, one of the arch conservatives on the court and another Reagan appointment, wrote a dissenting opinion – some might say a rant – expressing his uncensored outrage. In a diatribe unimaginable from a Canadian court, Scalia let his homophobic view run loose. He described the majority as having “signed on to the so-called homosexual agenda,” and “taken sides in the culture war, departing from its role of… neutral observer.” Scalia seemed to consider himself “neutral” – despite his own endorsement of the opposite side.

While noting he has “nothing against homosexuals,” Scalia condemns the majority’s “anti-anti-homosexual culture,” and laments the “massive disruption of the social order” that is going to ensue. Make no mistake, Scalia, tells us: Strike down sodomy laws today, and tomorrow there will be same-sex marriage.

Of course, the good news is that Scalia lost. But the fact that three Supreme Court justices can sign on to such an opinion speaks volumes of the state of gay rights in the US. While we wallow in the victory of same-sex marriage, the decision brings the US out of the 19-century.

Now gay rights activists down south can turn their attention more fully to questions of discrimination and relationship recognition, and use the ruling to advance the case of gay adoption and same-sex marriage, a struggle that will no doubt take many, many more years in the US.

But before we Canadians become too self-righteous about our obvious superiority (and reading Scalia’s dissent makes it all too obvious), it’s worth noting a few interesting differences between us and them. The US approach, though working on time lag, might bode better for sexual liberties in the future.

Why? In Canada, gay rights and same-sex relationship recognition has been achieved largely through equality rights. In contrast, in the US, the constitutional protection of liberty and privacy has been used to win the right to make personal decisions in relation to contraception, abortion, marriage and now, intimate sexual relationships. And the struggle for same-sex relationship recognition will continue to focus on these liberty and privacy rights.

While our focus on equality rights may have won rights for gay folks more quickly, there are some interesting limits to this approach. Now that we are on the cusp of same-sex marriage and full formal equality, these equality rights strategies are at an end. As long as we are treated exactly the same as everyone else, the courts here can offer us little.

And so we will be unlikely to win the next round of battles – like reforming the laws criminalizing consensual sex that are still used against gay folks – using the Canadian tactics of equality rights. The liberty and privacy rights that won the day in this sodomy decision are much more useful for winning personal freedoms. We need a legal culture that is committed to the idea of individual autonomy in intimate matters. And we don’t really have one.

The social conservatives may still be a force to contend with in the US and gay rights there still have a long way to go. But their constitutional path may ultimately take them a bit farther down the road of sexual freedom.

* Brenda Cossman is a member of the board of directors of Pink Triangle Press, which publishes Xtra, and is a professor of law at Osgoode Hall.