Moving Rocks

The trend for the second half of the 1980s in world politics was established early in 1986. The Homosexual Law Reform Act was passed in New Zealand which legalised sodomy and set the age of consent to 16, and Haiti decriminalised homosexuality. In the United States, however, a different story as playing out in the Supreme Court.

Due to the nature of the way the United States set up its legislative and judicial system in 1789, and the paranoia that created the 10th Amendment to the Constitution (which says that any powers not explicitly given to the federal government in the Constitution is reserved to the States…which will become incredibly important to LGBT rights) each state in the US has the power to criminalise or decimalise homosexuality. Although the US government also has laws which denote the legality of homosexuality in federal employment and the US Military, it does not have the power to make a law prohibiting or legalising sodomy nationally. The importance of this was shown in the SCOTUS case of Bowers v. HardwickBowers upheld, in a 5-4 decision, the constitutionality of Georgia’s sodomy law. Writing of the majority, Justice Byron White argued that the US Constitution didn’t “confer a fundamental right to engage in homosexual sodomy.” Chief Justice Warren E. Burger concurred, writing that the ancient roots of the prohibitions of homosexual sex still applied, arguing that homosexuality was a crime against nature, worse than rape. In his dissenting opinion, Justice Harry Blackmum argued that it wasn’t a moral or religious decision, reminding the Court that the it was supposed to secular, but a question of the right to privacy. Bowers set the precedent for the upholding of state sodomy laws.

Although homosexuality had been decriminalised in all of the UK (1967 in England and Wales, 1980 in Scotland and 1982 in N. Ireland) Tory PM Margaret Thatcher did not approve. At the 1987 Conservative party conference she said that “children who need to be taught to respect traditional moral values are being taught that they have an inalienable right to be gay.” As a result of her speech, backbench Tory MPs floated a measure called Section 28, which added a section to the Local Government Act of 1986. Section 28 prohibited local authority from intentionally promoting homosexuality, or teaching in state schools the acceptance of homosexuality as a “pretended” family relationship. Although Section 28 had no legal ramification, it caused many groups to practice self-censorship in fear of possible prosecution.

In the United States, in response to the US government’s lacklustre response to the AIDS epidemic, AIDS Coalition to Unleash Power (ACT-UP) is founded in 1987. Also in 1987, US Congressman Barney Frank of Massachusetts announced his homosexuality, making him the second out serving member of US Congress…both gay Congressmen are from Massachusetts. In the Republic of Ireland, David Norris became the first openly gay man elected to public office. Norris, who had been fighting the legislation that criminalised buggery in the Republic of Ireland since 1983, took his case of the European Court of Human Rights in 1988. In Norris v. Ireland, the ECtHR decided, using the precedent of Dudgeon v. United Kingdom that the Republic of Ireland’s sodomy laws were in violation of the privacy clause of Article 8 of the European Convention on Human Rights. The Republic of Ireland would legally repeal the laws criminalising buggery in 1993.

Section 28 was legally enacted in the United Kingdom, and a very similar thing enacted in Scotland, in 1988. In response, British Actor Ian McKellan tells BBC Radio 3 that he’s gay, making him the most high profile, living, working actor to come out. At the same time, Sweden passed laws which protected homosexual rights in relation to social services, inheritance and taxes; the Prime Minister of Canada Svend Robinson announced his homosexuality; and Belize and Israel decriminalised sodomy (both countries’ sodomy laws were left over from British colonialism, much like the Republic of Ireland’s buggery law).

As a reaction to Section 28, Stonewall UK is founded in 1989 to oppose various barriers of equality in the Britain, Scotland and N. Ireland. In Australia, Western Australia becomes the last state to decimalise homosexuality, and Liechtenstein decimalised sodomy. Denmark became the world’s first sovereign nation to enact a domestic partnership law for same-sex couples.

By the end of the 1980s, the AIDS pandemic had spread to every continent on earth, and was only just beginning to receive the attention and funding needed to fight it. In Europe, almost every EU nation had decriminalised sodomy, several had passed laws which prohibited discrimination based on sexual orientation, and one created domestic partnerships for same-sex couples. In the ensuing decade, civil unions and domestic partnerships for same-sex couples would start to make their way in the laws of Europe’s various nations. In the United States, however, the conservatism wrought by the Reagan era, and election of Reagan’s Vice President George Bush in 1988, stagnated homosexual rights. While Europe found its self equalising homosexuality in various aspects of national law, the political climate of the United States would see anti-homosexuality laws go nowhere.

Part XXIV- Homosexuality, Politics and the 1990s


[Note: Remember Bowers v. Harwick cause you’re gonna be reading about it again soon…or rather its predecessor. The essential thing to take away from Bowers is this: SCOTUS upheld a state statute which allowed the persecution of oral and anal sex between men, in private. ]

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