By Dan Woods, April 2012

Given the political momentum created by the United States Supreme Court’s decision Bowers v. Hardwick(1986) validating state sodomy law and the spread of AIDS in the 1980s, state governments and lawmakers were prompted to address issues of public health and homosexual rights. In North Carolina, the AIDS problem forced the State’s General Assembly to commission a report detailing the extent of the epidemic and it focused heavily on the lives of homosexual men. Moreover, North Carolina Representative Michael Decker attempted to seize upon the window of opportunity created by the national political backlash against homosexuality to expand upon anti-gay state laws.

Larger Context and National Trends

In 1986, the United States Supreme Court declared that state laws barring consensual homosexual sodomy do not violate the fundamental liberties awarded to individuals by the U.S. Constitution. Justice Byron White wrote for the narrow 5 judge majority and stated that sodomy is neither “deeply rooted in this Nation’s history” nor is it “implicit in the concept of ordered liberty[1].” Moreover, in a concurring opinion, Chief Justice Warren Burger emphasized those “ancient roots” which have historically proscribed the act and commented that a ruling to the contrary would “cast aside a millennia of moral teaching[2].”

Meanwhile, the AIDS epidemic and its concentrated effects on homosexuals prompted evangelical zealots and social conservatives to claim that the emergence and spread of the virus was God’s punishment for homosexuality[3]. Crimes against nature were, in their view, being punished by nature via disease. The New Right and Jerry Falwell’s Moral Majority helped lead the effort and criticized what they believed to be a depraved and overly promiscuous demographic. Their 1980 manifesto entitled “The Goals of the Moral Majority” implored its followers to stand against both the feminist and gay liberation movements[4].

Polling data from the 1980s shows that the public was appalled by the AIDS epidemic and was likewise okay with the Supreme Court’s decision in Bowers, since nearly 75% of surveyed Americans believed that “sexual relations between two adults of the same sex” were immoral[5].

Crimes Against Humanity and Sodomy Law in North Carolina

Sodomy laws, or “crimes against nature” (CAN), have been on the books since the founding of the country. Indeed, North Carolina Statutes Section 14-77 was originally derived from King Henry VII’s common law, and says that, “If any person shall commit the crime against nature, with mankind or beast, he shall be punished as a Class I felon[6].” Because CAN incorporates both acts of sodomy and bestiality, English jurists and early N.C. lawmakers were seeking to brand gay intercourse as a special, unnatural phenomenon. N.C. courts have defined CAN as “sexual intercourse contrary to the order of nature” which also includes any “act of bestial character whereby degraded and perverted sexual desires are sought to be gratified.” Here, by examining the language of the common law it is apparent that the rule attempts to legally define standards of sexual normalcy and deviance. Even more, the mere “solicitation to commit CAN” was also illegal[7]. Thus, these regulations tried to suppress public signaling, keep gays closeted, and, in the modern context, even regulate camp culture and gender digression.

The General Assembly Report on AIDS and Representative Michael Decker

According to a 1989 study commissioned by the Legislative Research Committee of the North Carolina General Assembly, the primary means by which the AIDS virus was transmitted was “occurred men engaged in homosexual activities[8].” The report similarly stated that 63% of the victims of the disease were “homosexual or bisexual men” and that an additional 7% was made up of homosexual or bisexual men with a history of IV drug abuse[9]. Thus, 70% of cases were linked directly to gay men. While these numbers in themselves are hardly surprising, the report also mentioned that “coping with AIDS will be a severe test of our social values[10].” This conclusion suggests that while the virus was a serious public health concern, it was not simply about providing relief to suffering human beings—it was also a matter of social subjectivity, politics, and general acceptability.

Seizing upon the political backlash created by the AIDS epidemic and Bowers, N.C. Representative Michael Decker (R-94th District) sought to expand upon existing CAN law and further deprive homosexuals of basic rights. For example, in the 1985 session Decker introduced a bill to outlaw LGBT groups in the University of North Carolina system. In defense of his proposal, Decker proclaimed that homosexuality in itself was actually illegal and that by giving such groups official recognition the public university system was “aiding and abetting a felony[11].” Another proposal of Decker’s sought to give public school principals and school boards the ability to dismiss any teacher for simply being gay[12].

Conclusion

Despite the condescending language of the report and the anti-gay efforts of Rep. Decker, it is not all bad news. For one, both of Decker’s anti-gay proposals died in committee and never even made it to the floor for a vote. Secondly, the General Assembly’s report recognized that the overall spectacle surrounding AIDS begets discrimination in areas like employment and healthcare[13]. Even more significant is the fact that the research said that any meaningful state effort attempting to combat the AIDS epidemic must address discrimination as “the first critical step” because as long as systemic prejudice exists and is legally allowed, infected individuals would be reluctant to come forward for testing, counseling, and care[14].

References

1. Lee Epstein and Thomas Walker. Constitutional Law For A Changing America: Rights, Liberties, and Justice. (7th Edition. CQ Press: Washington D.C. 2010.), 421.
2. Lee Epstein and Thomas Walker. Constitutional Law For A Changing America: Rights, Liberties, and Justice. 421.
3. Vicki Eaklor. New Right. (GLBTQ: An Encyclopedia of Gay, Lesbian, Bisexual, Transgender, and Queer Culture. Ed. Claude Summers. 2004. 12 December 2006). <http://www.glbtq.com/social-sciences/new_right.html> Accessed: 18 April 2012.
4. Vicki Eaklor. New Right.
5. Lee Epstein and Thomas Walker. Constitutional Law For A Changing America: Rights, Liberties, and Justice. 421.
6. John Boddie. A Legal Guide for Lesbians and Gay Men in North Carolina. (North Carolina Gay and Lesbian Attorneys. August 1995), 55.
7. John Boddie. A Legal Guide for Lesbians and Gay Men in North Carolina, 55.
8. Acquired Immune Deficiency Syndrom (AIDS). (Committee on Acquired Immune Deficiency Syndrome – AIDS. Report to the 1989 General Assembly of North Carolina 1989 Session: Legislative Research Commission. 14 December 1988), 3.
9. Acquired Immune Deficiency Syndrom (AIDS), 7.
10. Acquired Immune Deficiency Syndrom (AIDS), 9.
11. John Boddie. A Legal Guide for Lesbians and Gay Men in North Carolina, 54.
12. H1173 – Homosexual Teacher Dismissal. (NCGA Bill Inquiries: North Carolina General Assembly: 1985-1986 Session) <http://www.ncleg.net/gascripts/ BillLookUp/BillLookUp.pl?Session=1985&BillID=H1173> Accessed: 18 April 2012.
13. Acquired Immune Deficiency Syndrom (AIDS), 18.
14. Acquired Immune Deficiency Syndrom (AIDS), 17.