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Special Class Protections for Self-Alleged Gays: A Question of "Orientation" and Consequences

A public policy analysis
by Tony Marco

Copyright Tony Marco, 1991-1994, all rights reserved


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"Right to Privacy" Argument

Some argue that homosexuals' "right to privacy" should override the civil rights considerations we've raised. As Justice Harlan wrote in "Poe vs. Ullman," 367 U.S. 497, 552-553 (1961): "The right of privacy most manifestly is not an absolute. Thus, I would not suggest that adultery, homosexuality, fornication and incest are immune from criminal enquiry, however privately practiced... but the intimacy of husband and wife is necessarily an essential and accepted feature of marriage, an institution which the State not only must allow but which always and in every age it has fostered and protected."

The U.S. Supreme Court in "Bowers vs. Hardwick" (1986) refused to grant homosexual behavior an absolute "right to privacy." The Court explained that the right to privacy inheres only in family relationships, marriage and procreation, and does not extend to all private sexual conduct, even between consenting adults. And, problematically, many gays don't practice their behavior in private. Homosexuals commonly engage in sex acts (often with anonymous partners) in public parks, public rest rooms and bars, bathhouses and other establishments open to public patronage (also in public parades, as we have seen).

According to The Gay Report (op. cit., p. 500), for undisclosed reasons, homosexuals most frequently practice their behavior, not in the privacy of their own bedrooms, but in public rest rooms, bus stations, service stations, public libraries, rest stops, etc. No one compels homosexuals to perform sexual acts in public places. Yet their behavior can easily become an intrusion on the privacy, as well as the health and safety, of others. (The August 3, 1989, Laguna Beach News Post reported that City Council there refused to take action on the complaint of outraged citizens who appeared in support of a distraught mother. Her son had been frightened by three homosexual men engaged in sex in a public rest room. With a gay mayor at the time, and a special gay advantage ordinance, investigating and prosecuting such offenses was evidently not a priority in Laguna Beach.)

Never before the largely-homosexually-spread AIDS epidemic has privacy been a factor in society's dealings with transmitters of highly communicable -- even curable -- diseases. Never before have carriers of incurable diseases been granted absolute rights to privacy, plus special legal protection and privileges. Never before has a group identified by a communicable, 100% fatal disease been rewarded by government with total privacy and immunity from criticism. (Ironically, gay militants loudly assert that "AIDS is not a gay disease" -- while at the same time they call anyone who opposes AIDS- sufferer privacy "anti-gay!") Tragically, the loudest defenders of an absolute "right to privacy" for AIDS carriers are often the same individuals who argue that society should protect the "rights" of criminals at all costs. These First Amendment "defenders" show a warped, but "consistent" unconcern about the fate of innocent victims. We don't share their misguided sense of justice.

Some argue that to deny homosexuals the license to publicly exhibit what they call their affection is to hinder the full expression "of our society's rich diversity." (In The Gay Report, Jay and Young [op. cit.] reported that 51% of gays surveyed thought they should be granted a "right" to engage in public sex at any time.) Must all American citizens be forced to endure as "diversity" what many conscientiously consider destructive pseudo-"civil rights?" We think not.


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Updated: 13 July 2002