How a Note or a Grope Can be Justification
for the Killing of a Homosexual. An Analysis
of the Effects of the Supreme Court's Views on
Homosexuals, African-Americans and Women
The expression "you're letting your slip show" is a common way for gay
men to tell each other that they are acting too gay. It is a way of saying you
might want to tone it down a bit or else people might begin to suspect that
you are gay. This is a necessary way of thinking in a society that is so
focused on heterosexuality.' The model which American society has
looked to is the heterosexual nuclear family.2 The American ideal of family, generally, does not include the idea of two people of the same sex sharing in a committed relationship.'
These norms that have transcended time have become manifested in stereotypes of gay men that pervade not only popular culture, but also the legal
system.4 The United States Supreme Court has referred to homosexuality
as a failure to achieve sexual maturity.5 These views that define the American family as a heterosexual couple have allowed the stereotype of gay men
as sexual deviants to continue.6
Gay men are not the only people who have suffered from stereotypes in
this society. 7 Stereotypes about African-Americans began with the slave
trade and continue to allow discrimination against African-Americans.8
These stereotypes were reflected in many laws and acts enacted by state
legislatures. 9 The Supreme Court, however, has made it clear that any laws
that discriminate solely based on race will be found unconstitutional.° Be1. See generally Franciso Valdes, Unpacking Hetero-Patriarchy:Tracingthe Conflation
of Sex, Gender & Sexual Orientation to Its Origins, 8 YALE J.L. & HUMAN. 161, 163 (1996).
2. See Christina Pei-Lin Chen, Note, Provocation'sPrivilegedDesire: The Provocation
Doctrine, "Homosexual Panic," and the Non-Violent Unwanted Sexual Advance Defense, 10
CORNELL J.L. & PUB. POL'Y 195, 198 (2000).
3. See id.
4.
See generally id. at 199.
5.
See Boutilier v. INS, 387 U.S. 118, 127 (1967) (Douglas, J., dissenting).
6.
See Chen, supra note 2, at 198.
7. See generally Jody Armour, Stereotypes and Prejudice: Helping Legal Decisionmakers Break the Prejudice Habit, 83 CAL. L. REV. 733 (1995).
8. See generally EDMUND S. MORGAN, AMERICAN SLAVERY AMERICAN FREEDOM: THE
ORDEAL OF COLONIAL VmGINIA 328 (W. W. Norton & Company, Inc. 1975).
9. See id. at 331 (explaining how Virginia "prescribed thirty lashes on the bare back" for
any African-American who raised their hand "in opposition to any Christian." In 1705,
Virginia also allowed the dismemberment of unruly slaves.).
10. See Loving v. Virginia, 388 U.S. 1, 11-12 (1967).
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 29:219
cause of that decision, the legal system has begun to adapt to society's
changing views of African-Americans."
Women have also been discriminated against strictly because of their
gender. 2 However, as the women's movement gained momentum, women
gained many of the constitutional rights that had always been guaranteed to
men. 3 The Supreme Court stated that in many situations women had not
been treated any differently than African-Americans had before the end of
slavery.' 4 With this change in society's views of women, states also began
to adopt statutes to put women on a more equal footing with men. 5
In contrast to their changing views on African-Americans and women,
the Supreme Court, through decisions like Bowers v. Hardwick'6 and Boutilier v. INS,' 7 has set the standard for the views of homosexuals in today's
society.' 8 By continuing to label homosexuality as being against JudeaoChristian morals, the Court has set the stage for discrimination against
homosexuals in society and in the court system.' 9
The murder of Matthew Shepard provides an example of how two heterosexual men tried to justify the brutal beating of a gay man, by the alleged
sexual advance made by Mr. Shepard toward one of the men.2" This advance, which by the heterosexual man's own account, amounted to Mr.
Shepard grabbing the man's groin area and blowing in his ear.2 ' The defense attempted to say that this advance somehow justified tying Mr. Shepard to a fence, beating him with a pistol and leaving him to die.2 The
murder of Scott Amedure provides another example of how a voluntary
appearance on a talk show, combined with a "sexually suggestive note" left
on a front door, can be manipulated by the defense into a justification for
shooting a homosexual to death in the doorway of his home.2 3
This Comment will contrast the Supreme Court's views on homosexuals,
African-Americans and women. This Comment will analyze how the court
11.
12.
See generally id.
See generally Frontiero v. Richardson, 411 U.S. 677 (1973).
13.
14.
15.
See id. at 687.
See id. at 685.
See id. at 687.
16.
17.
18.
478 U.S. 186 (1986).
387 U.S. 118 (1967).
See generally Bowers v. Hardwick, 478 U.S. 186 (1986).
See also Boutilier, 287
U.S. at 127. In Bowers, the Court labeled homosexuality as being against Judeao-Christian
morals, and in Boutilier, the Court labeled heterosexuality as sexual maturity.
19.
See Bowers, 478 U.S. at 196.
20.
See Chen, supra note 2, at 196.
21.
See Bryan Robinson, PathologistDetails Shepard's Fatal Injuries, CourtTV Online,
Oct. 27, 1999, at http://www.courttv.com/trials/McKinney/102699 ctvhtml (last visited Jan.
15, 2003).
22.
See id.
23.
See People v. Schmitz, 581 N.W.2d 766, 768 (1998).
Summer, 2003]
SUPREME COURT AND HOMOSEXUALITY
221
system has adapted to society's changing views of African-Americans and
women by providing heightened sentences for crimes against AfricanAmericans, and by protecting rape victims through rape shield laws. However, the tone set by the Supreme Court continues to allow excuses for
violence against homosexuals.
Part One will examine the history of homosexuality. It will illustrate
how the Supreme Court has created a moral view that condemns homosexuals. 24 This moral condemnation is evidenced through the Gay Panic Defense, which provides a justification for violence against homosexuals.2 5
This defense will be illustrated through an analysis of the trials surrounding
the deaths of Matthew Shepard and Scott Amedure, and how the victims'
character as gay men became the focus of the defense teams.26
Part Two of this Comment will look at the historical perspectives of slavery and stereotypes surrounding African-Americans. It will show how the
Civil Rights Movement changed how people viewed African-Americans,
and how the court system adapted to those changing societal views. An
examination of the dragging death of James Byrd, Jr. will show how the
prosecution of a hate crime against an African-American focused on the
person who committed the act and not on the victim. Part Two will also
address how hate crime legislation has provided for heightened sentencing
requirements for perpetrators of hate crimes against African-Americans.
Part Three will look at the historical perspective of women and how they
have gained some equal footing with men. As society's views of women
have changed, the court system has adapted to those changing views. Women were given the right to vote, the right to hold office, and the right to
privacy to make decisions about their own bodies.2 7 Part of this privacy
right regarding a woman's body is reflected in the vast changes in rape
law.2 8 These changes are most evident in the modification of rape law and
rape shield statutes that are designed to protect the victim of rape from
having her past sexual history used against her in court.29 This changing
24.
See generally Bowers, 478 U.S. 186 (explaining how homosexuality is against
Judeao-Christian morals).
25.
See Kara S. Suffredini, Note, Pride and Prejudice:The Homosexual Panic Defense,
21 B.C. THIRD WORLD L.J. 279, 279 (2001).
26. See Chen, supra note 2, at 196. See generally Suffredini, supra note 25, at 279.
27. See Roe v. Wade, 410 U.S. 113, 157 (1973); see also Frontiero,411 U.S. at 685.
28. See Sakthi Murthy, Comment, Rejecting UnreasonableSexual Expectations: Limits
on Using a Rape Victim's Sexual History to Show the Defendant's Mistaken Belief in Con-
sent, 79 CAL. L. REV. 541, 543 (1991) (explaining how earlier rape law placed the victim on
trial and how public pressure provided for changes in rape law to protect the victim during
cross-examination).
29. See id.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 29:219
view will be illustrated through the State in Interest of M.T.S., a New Jersey
3
rape trial, and the rape and murder of Barbara Williams. "
Part Four of this Comment will analyze the Supreme Court's opportunity
to reexamine the rights of homosexuals. In Lawrence v. State3 two homosexual men were convicted of violating the Texas statute that makes it ille32
In facts very
gal for two people of the same sex to engage in sodomy.
33
similar to the landmark case of Bowers v. Hardwick, Lawrence offered the
Supreme Court an opportunity to reassess society's views of homosexuality
and the privacy rights of homosexuals in their bedroom.
I.
HISTORICAL PERSPECTIVES OF HOMOSEXUALITY AND THE
DEVELOPMENT OF THE HOMOSEXUAL PANIC DEFENSE
Modem views of homosexuality and its role in society began with the
ancient Greeks.34 In Greek culture, male same-sex relationships "were
deemed the ideal physical and spiritual venue for the pursuit of love,
beauty, friendship, and camaraderie among those born to lead."3 5 Homosex36
Eventually,
ual relationships were not only accepted, but celebrated.
37
Greece came into the Roman Empire. With the rise of the Roman Empire
came the development of Christianity.3 8 With the rise of Christianity, women continued in their passive, submissive roles, and same-sex partnerships
began to be considered immoral.39 These themes began to prevail through
the ages as Christianity spread and many religions began to condemn
homosexuality. 4"
From this heterosexual society, cultural stereotypes began to develop into
ideas that set the stage for discrimination against homosexuals. 4 ' A sexual
protocol developed that men would pursue women and women would be
pursued by men.42 While women were relegated to be the ones pursued,
society set norms whereby men were not to be placed in the role of being
pursued.4 3 When one man makes a sexual advance toward another man, this
30.
See generally State in Interest of M.T.S., 609 A.2d 1266 (N.J. 1992).
31.
41 S.W.3d 349 (2001).
32.
See id. at 350.
33.
34.
35.
36.
37.
38.
39.
40.
41.
See generally Bowers, 478 U.S. 186; Lawrence, 41 S.W.3d 349.
See Valdes, supra note 1, at 162.
Id. at 184.
See id. at 186.
See id. at 199.
See id.
See Valdes, supra note 1, at 201.
See generally id. at 202.
See Chen, supra note 2, at 198.
42.
See generally BRYAN
43.
STRONG ET AL., HUMAN SEXUALITY DIVERSITY IN CONTEMPO-
130, 131-32 (3d Ed. 1999).
See Suffredini, supra note 25, at 284.
RARY AMERICA,
Summer, 2003]
SUPREME COURT AND HOMOSEXUALITY
223
goes against his view of what society expects from men. 44 In order to reestablish himself as the heterosexual, dominant male, he has to reaffirm his
dominant position by acting aggressively toward the gay male.4 5
By the 1920s, with heterosexual bias firmly in place in society, the stage
was set for the court system to adopt biases against homosexuals. The homosexual panic defense first appeared in the 1920s, as defined by psychiatrist, Edward Kempf.4 6 His definition of a "homosexual panic" was an
"anxiety attack [that] was 'due to the pressure of uncontrollable perverse
sexual cravings."' 4 7 Other psychologists later defined homosexual panic in
terms of latent homosexual desires that were provoked or awakened by a
homosexual advance.4 8 In the 1970s, the Psychiatric Dictionary defined ho-
mosexual panic as "'an acute, severe episode of anxiety related to the fear
... that the subject is about to be attacked sexually by another person of the
same sex, or that he is thought to be a homosexual by fellow-workers.' "9
The fear of being labeled a homosexual came from the medical definition
and psychological classification of the word homosexual at the time.5 ° Prior
to 1973, homosexuality was listed in the Diagnostic and Statistical Manual
of Mental Disorders as a psychological disorder.5" It was this view of homosexuality as a psychological disorder that led to the establishment of the
defense of a homosexual panic.5 2 The basic idea was that a man could be so
threatened by his own latent homosexual desires, that when confronted by a
man who made a sexual advance he would lose control and commit a violent act.53 In 1973, when the Psychiatric Association removed homosexuality from its list of psychological disorders, the homosexual panic defense
lost its medical background.5 4 However, the defense began to be used as a
way to mitigate charges from first-degree murder to manslaughter.55
44. See id.
45. See id.
46. See Robert G. Bagnall et al., Comment, Burdens on Gay Litigants and Bias in the
Court System: Homosexual Panic, Child Custody, and Anonymous Parties, 19 HARv. C.R.C.L. L. Rav. 497, 499 (1984) [hereinafter Burdens on Gay Litigants].
47. Id. (alteration in original).
48. See id. at 499-500.
49. Id. at 500 (citing LELAND E. HINSIE & ROBERT J. CAMPBELL, PSYCHIATRIC DicIONARY, 348 (4th ed. 1970)).
50. See Chen, supra note 2, at 200.
51. See id. at 202.
52. See id.
53. See id. at 200-01.
54. See id. at 202.
55. See Chen, supra note 2, at 203.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 29:219
The Supreme Court's Views
A.
1. Boutilier v. INS
In 1967, the Supreme Court was faced with an appeal of a deportation
orderagainst a Canadian. 6 The Canadian, Mr. Boutilier, had been ordered
deported under the Immigration and Nationality Act of 1952." 7 This Act has
a clause that denies people with "psychopathic personality" entry into the
United States.5 8 Between 1955 and 1959, Mr. Boutilier had made several
trips between Canada and the United States.5 9 In 1963, Mr. Boutilier applied for citizenship, at which time he disclosed that he had once been arrested for sodomy.6" He explained that the charges had been reduced to
assault, and later dismissed because of default by the other party. 6 ' However, Mr. Boutilier's citizenship application was denied and he was ordered
deported to Canada.62 In reaching its decision to deport Mr. Boutilier, the
Supreme Court relied on the complete sexual history of Mr. Boutilier that
the lower court had required.6 3 Included in that sexual history was not only
how often Mr. Boutilier had engaged in homosexual sex, but also whether
or not he was the "active" or "passive" participant in the sex act.64
The Supreme Court ultimately affirmed the decision to deport Mr. Boutilier.6 5 In making its decision, the Court further relied on a report from the
Public Health Service, which stated that the physicians concluded that Mr.
Boutilier "'was afflicted with a class A condition, namely, psychopathic
personality, sexual deviate.' ,66 The Court also reviewed the legislative history of the Immigration and Nationality Act and concluded that the legislature had intended to include homosexuals under the phrase "psychopathic
personality" and thereby deny homosexuals the right to immigrate to the
United States.67 Justices Douglas and Fortas' dissent in Boutilier suggested
that "[t]he term 'psychopathic personality' is a treacherous one like
'communist.' ,61
The dissent argued that Mr. Boutilier's occasional homosexual activities
did not constitute an affliction of a psychopathic personality. 69 Because
56.
57.
58.
59.
See
See
See
See
Boutilier, 387 U.S. at 118.
id.
id. at 119.
id.
60.
61.
62.
63.
See
See
See
See
id.
Boutilier, 387 U.S. at 119.
id. at 120.
id. at 119.
64.
See id.
65.
66.
67.
See id. at 125.
Boutilier, 387 U.S. at 120.
See id. at 119.
68.
69.
Id. at 125 (Douglas & Fortas, JJ., dissenting).
See id. at 133-34.
Summer, 2003]
SUPREME COURT AND HOMOSEXUALITY
225
Mr. Boutilier experienced not only homosexual relationships, but also heterosexual relationships and periods of abstinence, the dissent felt that deportation would be too harsh a penalty.7v The dissent reasoned that Mr.
Boutilier's occasional homosexual acts were not enough to say that he was
"afflicted" with a psychopathic disorder. 7 The dissent relied on a psychologist who testified that "'[a]fflicted' means a way of life, an accustomed
pattern of conduct." 2 By making such a statement, the dissent left open the
idea that had Mr. Boutilier been engaged in long-term homosexual behavior, the dissent would have agreed with the majority that Mr. Boutilier was
afflicted with a psychopathic disorder because of his homosexuality. 3
2.
Bowers v. Hardwick
In the early 1980s, the Supreme Court once again addressed issues surrounding homosexuals. It had been more than ten years since the Boutilier
decision, and within that time, the term "homosexual" had been removed
from the Diagnostic and Statistical Manual of Mental Disorders as a mental
disease.7 4 However, the Supreme Court continued to use homosexual stereotypes to persuade its decision in Bowers v. Hardwick. 5 Bowers dealt
with a Georgia statute that outlawed sodomy.7 6 The ban on sodomy was
not exclusive to homosexuals, and the act of sodomy included both oral and
anal sex.77 Mr. Hardwick was charged with violating this statute with another consenting adult male in the privacy of his own bedroom.7 8
In an interview in 1988, Mr. Hardwick explained the events that led up to
79
the Supreme Court's monumental decision in Bowers v. Hardwick.
It was
8°
the early 1980s in Atlanta, Georgia.
A known gay bar was completing
some renovations, and Mr. Hardwick was helping the owners with the renovations. 8 1 Early in the morning, Mr. Hardwick left the club, and while
standing outside the club, he threw a beer bottle into a trashcan.8 2 A police
car followed Mr. Hardwick and finally stopped him, and the officer placed
70.
71.
See id.
See Bowers, 387 U.S. at 133.
72.
73.
74.
75.
76.
77.
78.
Id. (Douglas, J., dissenting).
See generally id.
See Chen, supra note 2, at 202.
See generally Bowers, 478 U.S. 186.
See id. at 186.
See id. at 188 n.I.
See id. at 188.
79. See WILLIAM B. RUBENSTEIN, SEXUAL ORIENTATION AND THE LAW 217 (2d 1997)
(containing an excerpt from PETER IRONS, What Are You Doing in My Bedroom?, in THE
COURAGE OF THEIR CONVICTIONS
80.
81.
82.
See id. at 218.
See id.
See id.
392 (1988)).
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 29:219
Mr. Hardwick in the back of the police car.83 After some time riding
around, the police officer gave Mr. Hardwick a ticket for public consumption of alcohol.8 4 A heated exchange occurred between Mr. Hardwick and
the officer, in which Mr. Hardwick accused the officer of harassing him
because he was leaving a gay bar.85 When the officer issued the ticket there
was a discrepancy between the date set for the hearing and the day of the
week written at the top of the ticket.86 Because of the discrepancy, Mr.
Hardwick went to the hearing on the wrong day, and the officer had a warrant issued for Mr. Hardwick's arrest.87 When Mr. Hardwick realized that
the warrant had been issued, he had it cleared up with the court, and the
warrant was revoked. 88
A few weeks later, the same officer, carrying the original warrant, went
to Mr. Hardwick's apartment early one morning.89 The front door was
open and the officer walked into the front room of the house where he saw
Mr. Hardwick's roommate asleep on the couch.9" The officer went to the
doorway of Mr. Hardwick's bedroom and observed Mr. Hardwick and a
friend engaging in consensual sexual acts.9 1 After standing in the doorway
and watching, the police officer arrested Mr. Hardwick and used the warrant to take him to jail.9" After he got to jail, the police officer made sure
that all the other people in the jail cell were aware that Mr. Hardwick was
arrested for homosexual conduct.9 3 The officer further explained, for everyone to hear, that Mr. Hardwick was "in there for 'cocksucking' and that
[Mr. Bowers] should be able to get what [he] was looking for."94
Mr. Hardwick eventually was able to clear up the issue behind the warrant, and after consulting some Atlanta lawyers who had been trying to fight
Georgia's sodomy laws, decided to sue the State of Georgia over these
laws.95 Mr. Hardwick eventually brought suit in federal district court, chal96
lenging the constitutionality of the statute.
What is rarely mentioned is that at the time Mr. Hardwick brought the
suit in federal court, a heterosexual couple were also plaintiffs in the ac83.
See id.
84.
See
RUBENSTEIN,
85.
86.
87.
88.
See
See
See
See
id.
id. at 218-19.
id. at 219.
id.
89.
See
RUBENSTEIN,
90.
91.
92.
93.
See
See
See
See
id. at 219-20.
id. at 220.
id.
id.
94.
See
RUBENSTEIN,
95.
96.
See id.
See id. at 221-22.
supra note 79, at 218.
supra note 79, at 219.
supra note 79, at 220.
Summer, 2003]
SUPREME COURT AND HOMOSEXUALITY
227
tion.97 They claimed that they too wanted to engage in the acts prohibited
by Georgia's statute in the privacy of their home.9 8 The district court held
that "because they had neither sustained, nor were in immediate danger of
sustaining, any direct injury from the enforcement of the statute, they did
not have proper standing to maintain the action."9 9 The court of appeals
affirmed the district court's decision to not allow the heterosexual couple to
be considered plaintiffs in the action."
The statute in question did not specify whether it applied to homosexuals
or heterosexuals.l"l The language of the statute clearly states: "'[a] person
commits the offense of sodomy when he performs or submits to any sexual
act involving the sex organs of one person and the mouth or anus of another
... [],
,1,
However, when the Supreme Court addressed the constitution-
ality of the statute the Court primarily focused on homosexuals rights to
engage in sodomy. 0 3 The Court stated: "The issue presented is whether
the Federal Constitution confers a fundamental right upon homosexuals to
engage in sodomy and hence invalidates the laws of the many States that
still make such conduct illegal and have done so for a very long time."' 4
Before the Supreme Court heard the Bowers case, the court of appeals
had determined that the right of privacy extended a fundamental right to
homosexuals to engage in sodomy.'0 5 However, the Supreme Court stated
that none of the decisions in the right to privacy cases extended the right of
homosexuals to engage in sodomy.'0 6 The Court based its decision on their
traditional view of family, and the notion that relationships between homosexuals did not involve the traditional views of family. 107 "No connection
between family, marriage, or procreation on the one hand and homosexual
activity on the other has been demonstrated, either by the Court of Appeals
or by respondent."' 0 8
The Supreme Court looked to the historical context of anti-sodomy
laws." ° The Court indicated that "[s]odomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they
ratified the Bill of Rights.'' 1 The Court concluded that the right of homo97.
98.
99.
See id.
See Bowers, 478 U.S. at 188 n.2.
Id.
100.
101.
See id.
See id. at 188 n.L
102.
Id. (alteration in original).
103.
See Bowers, 478 U.S. at 190.
104.
105.
106.
Id.
See id.
See id. at 190-91.
107.
108.
See id. at 191.
Bowers, 478 U.S. at 191.
109.
See id. at 192.
110.
Id.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 29:219
sexuals to engage in sodomy was not "'deeply rooted in this Nation's history and tradition.' "'
I
In making its decision, the Court addressed its decision in Stanley v.
Georgia,"12 which dealt with a person's right to possess obscene material in
the privacy of one's home." 3 The Court reasoned that even though Stanley
dealt with acts committed in the privacy of one's own home, they were not
ready to extend this privacy right to homosexuals.' 14 "[I]t would be difficult
. . .
to limit the claimed right to homosexual conduct while leaving
exposed to prosecution adultery, incest, and other sexual crimes even
though they are committed in the home. We are unwilling to start down
that road."11' 5 Chief Justice Burger, in a concurring opinion, stated that
"[c]ondemnation of... [homosexual] practices
is firmly rooted in Judeao' 16
Christian moral and ethical standards."
The dissent strongly disagreed with the focus of the majority on the acts
of homosexuals.' 7 Justice Blackmun, Justice Brennan, Justice Marshall
and Justice Stevens wrote "[t]his case is no more about 'a fundamental right
to engage in homosexual sodomy,' as the Court purports to declare.., than
Stanley v. Georgia .. .was about a fundamental right to watch obscene
movies."'8 The dissenting justices concluded that "this case was about
'the most comprehensive of rights and the right most valued by civilized
men,' namely, 'the right to be let alone.""' 9 The dissent went on to say
that just because Judeao-Christian ideals condemned homosexuality, that
gave no right to the Court to force those beliefs on the American public as a
20
whole. 1
In decisions like Boutilier and Bowers, the Supreme Court set the tone
for the continued discrimination against homosexuals and the continuation
of the homosexual panic defense. 21 In the following cases, homosexual
men were killed by heterosexual men, and the homosexual panic defense
allowed the possibility for the manipulation of any prejudices jury members
22
may have had.'
111. Id. at 194.
112. 394 U.S. 557 (1969).
113. See Bowers, 478 U.S. at 195 (referring to Stanley v. Georgia, 394 U.S. 557 (1969)).
114. See id. at 195.
115. Id. at 195-96.
116. Id. at 196 (Burger, C.J., concurring).
117. See id. at 199.
118. Bowers, 478 U.S. at 199 (citations omitted) (Blackmun, J.,
dissenting).
119. Id. (quoting Olmstead v. U.S., 277 U.S. 438, 478 (1928)) (Blackmun, J.,
dissenting).
120.
121.
122.
See discussion supra Part I.A.
See discussion supra Part I.A.
See generally discussion supra Part I.A.
Summer, 2003]
B.
SUPREME COURT AND HOMOSEXUALITY
229
The Homosexual Panic Defense
1. The Murder of Matthew Shepard
In October of 1998, two cyclists on a Wyoming road came across what
they thought was a scarecrow tied to a fence.' 2 3 What they found was the
badly beaten body of Matthew Shepard.' 24 The 21-year-old body of Matthew Shepard had been beaten with the butt of a pistol and burned.1 25 After
four days of lying in a26hospital, Matthew Shepard died from the injuries
suffered in the attack.'
Aaron McKinney and Russell Henderson were arrested in connection
with the attack.127 The men stated that they had met Mr. Shepard at a local
bar. 2 8 They had apparently told Mr. Shepard that they were gay and all
three men got into the defendant, Mr. McKinney's, truck and drove out into
the Wyoming countryside.' 29 Once in the truck, the men told Mr. Shepard,
"'We're not gay - you've been jacked.'"130 They then drove the 5'2", 105
pound Mr. Shepard out to a deserted roadside. 3 ' Mr. McKinney testified
that once they were in the truck, Mr. Shepard made a sexual advance toward the men.' 3 2 They then pulled off to the side of the road and ordered
McKinney began beating Mr. Shepard
Mr. Shepard out of the car. 13 3 Mr.
34
while Mr. Henderson watched. 1
Prosecutor Calvin Rerucha said there was abundant evidence to formally
charge Mr. McKinney. 1 35 In his opening statements at a preliminary hearing, Mr. Rerucha described the bloody scene. 136 He indicated that after the
beating, Mr. Shepard remained in the cold Wyoming night for eighteen
hours before being found. 137 The only place on his body that was not cov123.
Statutes:
124.
125.
126.
See Scott D. McCoy, Note, The Homosexual-Advance Defense and Hate Crimes
Their Interaction and Conflict, 22 CARDOZO L. REV. 629 (2001).
See id.
See id.
See id. at 630.
127. See Kathryn Rubenstein, Wyoming v. Aaron J. McKinney PreliminaryEvidence
Heard in Wyoming Beating, CourtTV Online, Nov. 19, 1998, at http://www.courttv.com/
trials/gaybashing/mckinney-prelim.htm (last visited Jan. 15, 2002) [hereinafter Wyoming v.
Aaron J.
128.
129.
130.
131.
McKinney].
See id.
See id.
Id.
See id.
132. See Robinson, supra note 21, at http://www.courttv.com/trials/mckinney/10
ctv.html.
133.
2 69 9
-
See Wyoming v. Aaron J. McKinney, supra note 127, at www.courttv.com/trials/
gaybashing/mckinney-prelim.html.
134.
135.
See id.
See id.
136.
See id.
137.
See id.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 29:219
ered in blood was on his face where tears had washed away the blood. 138
Mr. Shepard must have known what was coming that night, because Mr.
139
Shepard had been beaten twice before for being an outwardly gay man.
The big break in the connection between Mr. Henderson and Mr. McKinney came from Mr. McKinney's girlfriend, Kristen Price.' 0 Ms. Price told
the officers that she had helped dispose of the bloody clothes when Mr.
McKinney came home that evening. 4 ' She further explained to the officers
that "'McKinney struck him while Henderson laughed.' 1 4 2 Mr. Henderson then tied Mr. Shepard up, and Mr. Shepard begged for his life, while
both men beat him until he was unconscious. 143 In a recorded interview
with Mr. McKinney, he stated that they left Mr. Shepard for dead tied to the
fence. 144
The trial against Mr. Henderson began in March of 1999.145 His defense
was based on his claims that "he did not participate in Shepard's beating,
and that the murder was not premeditated."' 146 Because the penalty could
have been death, Mr. Henderson decided to plead guilty to Mr. Shepard's
kidnapping and murder.' 4 7 In exchange for the guilty plea, Mr. Henderson
14 8
was to receive two consecutive life terms.
The trial against Mr. McKinney began in October of 1999.149 The defense attorneys planned to plead the "gay 'panic' defense."' 50 In his opening argument, public defender Jason Tangeman admitted that Mr.
McKinney had killed Matthew Shepard. 5 ' Mr. Tangeman stated that Mr.
McKinney's motive was homosexual panic. 152 Mr. Tangeman explained
that on the night of the beating, Mr. Shepard was riding in the pick-up truck
with Mr. McKinney and Mr. Henderson.'
Mr. Tangeman told the jury
138.
See Wyoming v. Aaron J. McKinney, supra note 127, at www.courttv.com/trials/
gaybashing/mckinney-prelim.html.
139.
140.
141.
See id.
See id.
See id.
142.
Id.
143.
See Wyoming v. Aaron J. McKinney, supra note 127, at www.courttv.com/trials/
gaybashing/mckinney-prelim.html.
144. See id.
145. Kristen M. Jasket, Note, Racists, Skinheads and Gay-Bashers Beware: Congress
Joins the Battle Against Hate Crimes By Proposing the Hate Crimes PreventionAct of 1999,
24
SETON HALL LEGIS.
146.
Id.
147.
See id.
J. 509, 515 (2000).
148. See id.
149. Id. at 515-16.
150. See Jasket, supra note 145, at 516.
151. See Robinson, supra note 21, at http://www.courttv.com/trials/mckinney/
102699_ctv.html.
152.
153.
See id.
See id.
Summer, 2003]
SUPREME COURT AND HOMOSEXUALITY
231
that "Shepard made an unwanted advance towards McKinney by putting his
hand on the defendant's groin and sticking his tongue in McKinney's
ear.' 154 Mr. Tangeman said that this alleged homosexual advance which
brought back traumatic childhood memories for Mr. McKinney. 5 5 Allegedly, Mr. McKinney had been the subject of homosexual abuse by a neighborhood bully. 56 Mr. Shepard's advance, according to Mr. Tangeman,
triggered a rage during which Mr. McKinney blacked out.157 It was during
this alleged five-minute blackout that Mr. McKinney apparently fastened
Mr. Shepard to a wooden fence and whipped him with a pistol.' 5 8
The judge in the case eventually denied the defense's ability to use the
homosexual panic defense.' 5 9 Even though the defense had never referred
to their defense as a homosexual panic defense, the judge determined that
the defense's "strategy was a form of temporary insanity or diminished caBecause Wyoming did not allow either defense, the judge
pacity. '
barred the defense from employing this strategy.16 1 However, the judge
stated that, had the case been decided by the jury and continued to the sentencing phase, the elements of the homosexual panic defense could have
been used.16 2 "Ultimately, Shepard's parents interceded and asked that McKinney be sentenced to life in prison without parole rather than face the
death penalty."' 63
The Matthew Shepard case demonstrates how stereotypes of gay men
have enabled hate crimes to be committed against gay men.'" Matthew
65
Shepard did not come on to these two men in some darkened back alley.'
It appears more likely that these men basically set him up to trick him into
going out into the deserted Wyoming countryside. 66 They were the ones
that initially indicated to Mr. Shepard that they were gay. 1 67 The defense
team for the perpetrators, however, tried to establish that they were somehow justified in their reaction to Matthew Shepard.' 68 The basis for this
154.
155.
156.
Id.
See id.
See Robinson,
supra note
21,
at http://www.courttv.com/trials/mckinney/
102699_ctv.html.
157. See id.
158.
See id.
159.
See Text of the "Gay Panic" Defense Ruling in the Matthew Shepard Murder Trial,
CourtTV Online, Nov. 1, 1999, at http://www.courttv.com/trials/mckinney/gay-panic-ruling
_ctv.html (last visited Jan. 15, 2003) [hereinafter "Gay Panic" Defense].
160. Id.
161. See id.
162. See id.
163.
Jasket, supra note 145, at 516.
164.
165.
See generally id.
See generally id.
166.
See generally id.
167.
168.
See generally id.
See generally Jasket, supra note 145.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 29:219
justification is rooted in how homosexuals are perceived in modem society. 169 Even the attempted use of a homosexual panic defense demonstrates
how the potential exists for the court system to provide an excuse for violence against homosexuals. 7 ° Had the trial continued to the sentencing
phase, Matthew Shepard's identity as a gay man could have been
exploited
17
possible.
sentence
lowest
the
obtain
to
order
by the defense in
2.
The Murder of Scott Amedure
In 1995, Jonathan Schmitz appeared on The Jenny Jones Show, where the
identity of a person who had a crush on Mr. Schmitz was to be announced.1 72 As the cameras were rolling, a man, Scott Amedure, emerged
and announced that he was the person who had a crush on Jonathan
Schmitz.173 Supposedly embarrassed by the revelation of a same-sex crush,
174
Mr. Schmitz left the show and began a three day drinking binge.
On the morning of March 9, 1995, Mr. Schmitz "found a sexually suggestive note from Amedure on his front door."1 75 Mr. Schmitz then "withdrew money from his savings account, and purchased . . .a shotgun and
some ammunition."' 76 Mr. Schmitz drove to Mr. Amedure's trailer and
fatally shot him in the doorway of his trailer.' 77 Mr. Schmitz then called
1 78
911 and reported his crime.
At Mr. Schmitz's trial, the defense argued a diminished capacity defense. 179 The defense maintained that Mr. Schmitz already had "a badly
damaged psyche, was ambushed by the Jenny Jones show . . .and [was]
unrelentingly stalked by Amedure."'c' Even though Mr. Schmitz had been
charged with first-degree murder, the jury returned a verdict convicting him
of second-degree murder.' 8' The court of appeals overturned Mr.
Schmitz's first conviction of second-degree murder, but in the retrial, even
though the defense continued to blame the victim Scott Amedure, Mr.
1 82
Schmitz was once again convicted of second-degree murder.
169.
See generally id.
170.
171.
See generally id.
See "Gay Panic" Defense, supra note 159, at http://www.courttv.com/trials/mckin-
ney/gay-panicjrulingsctv.html.
172. See Michigan v. Schmitz, 586 N.W.2d 766, 768 (1998).
173.
174.
175.
176.
177.
178.
See
See
Id.
Id.
See
See
id. at 768.
id.
Schmitz, 586 N.W.2d at 768.
id.
179. See id.
180.
181.
Id.
See id.
182. See Suffredini, supra note 25, at 280.
Summer, 2003]
SUPREME COURT AND HOMOSEXUALITY
233
The murder of Scott Amedure demonstrates how little is required to suggest that the heterosexual male was provoked by the homosexual. 183 Mr.
Schmitz appeared on The Jenny Jones Show and became aware of Scott
Amedure's attraction towards him.' 84 The only contact between Mr.
Amedure and Mr. Schmitz after their appearance on the talk show was a
"sexually suggestive" letter allegedly left by Mr. Amedure on Mr.
Schmitz's front door. 8 5 The defense took the appearance on the talk show
and this one letter, and manipulated it into a claim that Mr. Schmitz had
been relentlessly stalked by Mr. Amedure.' 86 The use of the homosexual
panic defense allowed the defense to manipulate any possible homophobic
stereotypes the jury members may have had into a justification for the mur87
der of Scott Amedure.1
II.
PREJUDICIAL VIEWS OF AFRICAN-AMERICANS
Beginning with slavery in the United States, African-Americans have
been stereotyped as second-class citizens who have struggled to gain some
sense of equality in this country. 8 8 Originally, the fear of African-Americans began with the fear of slave uprisings. 89 Whites, realizing that this
was a possibility, were frightened that should the slaves unite, they could
potentially overthrow the system of slavery and, in the process, harm the
white slave owners.' 9 ° This idea has translated itself through the generations into American culture.' 9 1
Slavery originally not only meant enslaving Africans, but it also meant
enslaving Native Americans. 9 ' In 1670, an Act by the Virginia state legislature enslaved Native Americans brought into Virginia by land for twelve
years, or if the Native Americans were children, they were enslaved until
the age of 30.113 On the other hand, "negroes" brought into Virginia by
boat were enslaved for life.' 9 4 By 1682, the differences between Native
Americans and Africans were discarded, and the term slave referred to all
non-Christian servants. 19 5 Because of the lack of laborers, slaves were used
183.
See generally id. at 303.
184.
See id. at 279.
185.
186.
187.
188.
189.
190.
191.
192.
193.
194.
195.
See
See
See
See
See
See
See
See
See
See
See
Schmitz, 586 N.W.2d at 768.
id.
Suffredini, supra note 25, at 280.
generally Morgan, supra note 8.
id. at 307-08.
id.
id. at 330.
id. at 328-29.
Morgan, supra note 8, at 329.
id.
id.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 29:219
to build the foundation of the emerging settlements in America.' 9 6 It did
not really matter if these servants were brought in from other parts of
America or from Africa, "they were both, after all, basically uncivil, unchristian, and above all, unwhite."' 97
Fear of an uprising by African-Americans that could, if not overthrow, at
least disrupt our governmental system has fueled many prejudicial ideas of
African-Americans. 9 8 As slavery increased in Virginia, the legislature
continued to enact laws to not only control slaves, but also to instill the idea
that they were second-class servants.1 99 In 1705, the legislature allowed
"dismemberment of unruly slaves." 2" A problem began to arise when the
new settlers actively tried to convert both Native Americans and Africans to
Christianity.2 0 ' This conversion would do away with the notion of the savage non-Christian.2" 2 Masters began to discourage their slaves from becoming Christians because "it made them proud, and not so good
servants. ' ' 203
One of the biggest concerns for the new settlers was the mixing of the
races. 2°4 Those in positions of authority wanted to ensure the purity of the
20 5
white race by prohibiting sexual relations between whites and Africans.
In 1630, Hugh Davis was ordered to be whipped in front of "'an assembly
of Negroes and others for abusing himself to the dishonor of God and
shame of Christians, by defiling his body in lying with a negro." 20 6 By
1691, the Virginia legislature had enacted a law making interracial marriage
illegal. 2 7 The law was specifically aimed at the "'prevention of that abominable mixture of spurious issue which hereafter may encrease in this dominion, as well by negroes, mulattos, and Indians intermarrying with
English, or other white women.' , 2 8 The law further established that if a
white man did marry a "Negro" he would to be banished from the colony.20 9 If a free white woman gave birth to a child by a non-white man, she
would be fined.2 10 If she could not pay the fine, the woman would be sold
196.
197.
198.
199.
200.
201.
See id. at 296.
See id. at 329.
See generally Morgan, supra note 8, at 308.
See generally id. at 329-34.
Id. at 333.
See id.
202. See id. at 331-32.
203.
204.
205.
Morgan, supra note 8, at 333.
See id. at 333.
See id.
206.
207.
208.
209.
Id.
See id. at 334-35.
Morgan, supra note 8, at 335.
See id.
210.
See id.
Summer, 2003]
SUPREME COURT AND HOMOSEXUALITY
235
for a period of five years, and the child would be a servant to the parish for
a period of thirty years.2 1'
These laws were intended to encourage the idea of racism.2 12 Keeping
the white race pure, while sacrificing the needs and dignity of non-white
races was the ultimate goal of these laws.21 3 These ideas permeated not
only the time of slavery, but continued in the United States well after the
Emancipation Proclamation and into the time of the Jim Crowe Laws in the
south. 2 14 In 1955, a fourteen-year-old African-American boy, Emmett Till,
was kidnapped and killed by two white men in Mississippi. 21 5 The boy was
killed because he whistled at a white woman earlier that week.216 When his
body was found floating in a river it was "unrecognizable, except for a ring
on his hand. 121 7 An all-white jury acquitted the two white men of the
crime, and four months after their acquittal, Life Magazine published an
alleged confession by the two men. 2 18 Slowly, African-Americans through
the Civil Rights Movement of the 1960s began to obtain a more equal footing with whites.21 9 As this movement took place, some of the barriers separating the races were eliminated as a violation of equal protection under the
United States Constitution. 2
A.
The Supreme Court and African-Americans
In Loving v. Virginia,22 1 the Supreme Court struck down a statute making it illegal for a white person to marry a black person.2 22 Loving involved
a case where a "Negro woman, and ...
a white man, were married in the
District of Columbia. '223 They then returned to their native State of Virginia, where they were convicted of violating a Virginia statute that forbade
marriage between a "white person" and a "colored person."2'24 The statute
stated: "If any white person intermarry with a colored person, or any
211. See id.
212. See generally id. (keeping the races separate meant keeping the races unequal by
the enforcement of these laws).
213. See generally Morgan, supra note 8, at 329-34.
214. See generally Loving, 388 U.S. I (explaining how the lower court reasoned that the
races were put on separate continents in order to keep the races pure).
215.
See Film Addresses Murder of Emmett Till, CourtTV Online, Jan. 20, 2003, at
http:www.cnn.com/2003/SHOWBIZ/TV/01/20/tv.till.murder.ap/index.htm
[hereinafter Film
Addresses Murder].
216. See id.
217. Id.
218. See id.
219. See id.
220. See generally Film Addresses Murder, supra note 215, at http:www.cnn.comI2003/
SHOWBIZ/TV/01/20/tv.till.murder.ap/index.html.
221.
388 U.S. 1 (1967).
222.
223.
224.
See id.
Id. at 2.
See id. at 4.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 29:219
colored person intermarry with a white person, he shall be guilty of a felony
and shall be punished by confinement in the penitentiary for not less than
one nor more than five years. 22 5 The trial court judge suspended the
couples' one-year jail sentence, but conditioned it upon them leaving the
State of Virginia for a period of 25 years.22 6 In making his ruling the judge
stated:
'Almighty God created the races white, black, yellow, malay and red, and
he placed them on separate continents. And but for the interference with
his arrangement there would be no cause for such marriages. The fact that
the races shows that he did not intend for the races to
he separated
7
mix.'
22
In upholding the conviction of the couple, the Supreme Court of Appeals of
Virginia stated the reasons for supporting these laws were: "'to preserve
the racial integrity of its citizens,' and to prevent 'the corruption of blood,'
'a mongrel breed of citizens.' and 'the obliteration of racial pride.' "228
In holding the Virginia statute unconstitutional, the United States Supreme Court reasoned that the true purpose behind the statute was to maintain and promote "White Supremacy. "229 The Court concluded that the
the Equal Protection Clause of the Fourteenth
statute violated
23 0
Amendment.
As society progresses, many stereotypes still progress with it. 23 1 It is
easier to see stereotypical behavior and allow it to reinforce your prejudice,
than to change your way of thinking about a group of people.23 2 As the
American public becomes more aware of the social injustices that exist for
African-Americans, the court system is less likely to allow the blatant manipulation of jurors with racial stereotypes that paint African-Americans in
a negative light. 233 Racism and bigotry, however, are still thriving in society. The change has been that when an African-American is the victim of a
violent crime, based on racism, it can no longer be justified based on the
victim's race.2 34 One can no longer say that the victim deserved what he
got because of the color of his skin.2 35
225.
226.
227.
228.
229.
230.
231.
232.
233.
234.
235.
Id.
See Loving, 388 U.S. at 3.
Id.
Id. at 7 (quoting Naim v. Naim, 197 Va. 80, 90 (1955)).
See id.
See id. at 12.
See Armour, supra note 7, at 739.
See id.
See id.
See generally King v. Texas, 29 S.W.3d 556 (Tex. Crim. App. 2000).
See id. at 558.
Summer, 2003]
SUPREME COURT AND HOMOSEXUALITY
237
In the high-profile trial of the dragging death of James Byrd, Jr., the
focus was on the white defendants and their racist backgrounds. 236 There
was no way to establish that because of James Bird, Jr.'s race, he somehow
brought it on himself. 237 No matter how racist and prejudiced the jurors
may have been, any defense based on a justification for his brutal death
because of his race would never have been allowed in the courtroom. 238
B.
The Murder of James Byrd, Jr.
On the evening of June 6, 1998, James Byrd, Jr., an African-American
man, attended a party in his hometown of Jasper, Texas.2 39 In the early
hours of June 7th, an acquaintance of Mr. Byrd's saw him riding in the back
of a pick-up truck. 240 The next morning the Jasper police were called to the
discovery of a headless body of an African-American man at a predominantly African-American church outside Jasper, Texas. 2 4 ' The body was
later identified as that of James Byrd, Jr.242 Mr. Byrd's headless body was
found with his clothes tangled around his ankles.24 3 Mr. Byrd's head and
shoulder were discovered further up the road with a trail of blood leading
up the road between the headless body and Mr. Byrd's head and shoulder.2 44 Along the dirt road, police found Mr. Byrd's wallet, a cigarette
lighter engraved with the letters "KKK," and a wrench engraved with the
word "Berry. 2 4 5
On June 8, 1998, a pick-up truck owned by Shawn Berry was stopped for
a traffic violation.2 46 Police searched the truck and found a set of tools that
had the word "Berry" on their handles. 247 DNA evidence would later confirm that blood splatter underneath Mr. Berry's truck matched the blood
type of James Byrd, Jr. 24 8 A search of Mr. Berry's apartment also revealed
blood-stained clothing which later would was later determined to be stained
249
with the blood of James Byrd, Jr.
Shawn Berry, John King and Lawrence Russell Brewer, three white men,
were arrested for the death of Mr. Byrd.'
At trial, Lawrence Russell
236. See id.
237.
238.
239.
See generally id.
See generally id.
King, 29 S.W.3d at 558.
240. See id.
241.
242.
243.
244.
245.
See
See
See
See
Id.
id.
id.
id.
King, 29 S.W.3d at 558.
246. See id.
247.
248.
249.
250.
See
See
See
See
id.
id.
King, 29 S.W.3d at 559.
Jasket, supra note 145, at 512.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 29:219
Brewer explained how he and the other two men had been out joy-riding the
night they saw Mr. Byrd."' Earlier that night they had used a logging
52 Mr. Brewer
chain to pull up a mailbox and drag it behind their truck.2
explained that after giving Mr. Byrd a ride, they pulled off to the side of the
road and a fight broke out between Mr. Byrd and the three men. 253 The
three men then slashed Mr. Byrd's throat.25 4 Mr. Brewer further testified
that he got in the cab of the truck while Mr. Berry Mr. and King continued
to beat Mr. Byrd.2 55 Mr. Brewer testified that he begged Mr. Berry and Mr.
King not to drag Mr. Byrd with the logging chain as they had done with the
mailbox earlier that evening.2 56 Despite his pleas, Mr. Byrd was tied to the
back of the truck with the logging chain and drug down the logging road
until his head and shoulder were severed from his body.2 57 Evidence would
later illustrate that Mr. Byrd was alive during the dragging.2 58
At the trial of Mr. King, the prosecution focused on the racial animosity
that the three men had toward African-Americans.2 5 9 This was illustrated
through Mr. King's position "as the 'exalted cyclops"' of a white supremacist gang in prison and a number of Mr. King's tattoos.26 ° Mr. King's tattoos included images of a swasticka, and "a black man with a noose around
his neck hanging from a tree. '"261 Mr. King had allegedly been known to
show these tattoos and boast "'See my little nigger hanging from a
tree.' ",262 At trial, a "gang expert" testified that from information gathered
at John King's apartment, it was obvious he was trying to start a chapter of
the Confederate Knights of America in Jasper, Texas.2 63 In order to gain
publicity, he planned on doing something "public" on or around July 4,
1998.2 4 By leaving the body in front of an African-American church he
intended to "strike terror in the community. '"265
251. See The Brutal Murder of James Byrd, Jr. of Jasper, Texas NAACP, Sept. 17,
1999, at http://www.texasnaacp.org/jasper.htm#brewer (last visited Feb. 2, 2003) [hereinafter Texas NAACP].
252. See id.
253. See id.
254. See id.
255. See id.
256. See Texas NAACP, supra note 251, at http://www.texasnaacp.org/jasper.
htm#brewer.
257. See id.
258. See id.
259. See King, 29 S.W.3d at 559.
260. Id.
261. Id. at 560.
262. Id.
263. See id.
264. See King, 29 S.W.3d at 560.
265. Id.
Summer, 2003]
SUPREME COURT AND HOMOSEXUALITY
239
At Mr. Brewer's trial, the prosecution focused on racially motivated letters written by Mr. Brewer to Mr. King. 26 6 In these letters, references were
made to the term "roll a tire. '"267 Mr. Brewer testified that this was a reference to "a fellow inmate's dream to put a black man in a tractor tire and roll
him down a hill." 268 Ultimately Mr. King was found guilty of kidnapping,
murder, and was sentenced to death.2 69 Mr. Brewer was also convicted of
murder and sentenced to death, while Mr. Berry was found guilty of murder
but spared the death penalty.27 °
Unlike the murder of Matthew Shepard, the focus of the trial for the
murder of James Byrd, Jr. was on the hatred the defendants had for the
victim. 2 71 The defendants offered no justification for the crime. 272 The
only reason the crime had been committed was because of the color of Mr.
Byrd's skin.27 3 Unlike Matthew Sheppard's trial, there would not have
been an African-American panic defense available to the murderers of
James Byrd, Jr.2 74
C.
Hate Crime Legislation
Hate Crime legislation began in 1969 with a hatecrime statute as part of
the civil rights legislation. 275 The statute protects anyone who is not permitted to participate in federally protected activities because of their "race,
color, religion, or national origin. 2 7 6 The language of the Hate Crimes
Statistics Act of 1968 specifically does not include claims based on sexual
orientation. 7 7 In 1990, the Hate Crimes Statistics Act was passed. 78 The
purpose of the statute was to require the Attorney General to gather and
publish statistics on crimes based on "race, religion, disability, sexual orientation, or ethnicity.
279
Also in 1994, the Hate Crimes Sentencing Enhancement Act was passed
by Congress, providing an increase in the defendant's sentencing by three
266. See Texas NAACP, supra note 251,
htm#brewer.
267. Id.
268. Id.
269. See Jasket, supra note 145, at 512-13.
270.
271.
272.
273.
See
See
See
See
274.
See Suffredini, supra note 25, at 310.
at http://www.texasnaacp.org/jasper.
id.
generally King, 29 S.W.3d at 556.
generally id.
generally id.
275. See Andrew M. Gilbert & Eric D. Marchand, Note, Splitting the Atom or Splitting
Hairs - The Hate Crimes Prevention Act of 1999, 30 ST. MARY'S L.J. 931, 953 (1999).
276.
277.
278.
279.
Id. at 953.
See id. at 957.
See id. at 955 (The Act was codified in 1994).
See id.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 29:219
levels. 28" The sentence may be increased by three levels if it is determined
beyond a reasonable doubt that the victim was intentionally selected because of his or her "actual or perceived race, color, religion, national origin,
ethnicity, gender, disability, or sexual orientation." 2 ' Although the Hate
Crimes Sentencing Enhancement Act provides prosecutors with a tool
against hate crimes, as of 1999, out of 48,020 total sentence enhancements,
only 58 were successful.2 8 2
The legislation already passed is not without its problems. 28 3 In order to
enforce the Hate Crime Statute of 1960, the crime must be linked to a federally protected activity.2 84 The six federally protected activities include:
(1) enrolling in or attending a public school or public college; (2) participating in or enjoying a benefit, service, privilege, program, facility or activity provided or administered by a state government; (3) applying for or
enjoying employment; (4) serving as a grand or petit juror of any state; (5)
traveling in or using any facility of interstate commerce; or (6) enjoying
the goods or services of certain places or accommodation.285
In order to prosecute under 18 U.S.C. § 245, enacted as part of the Civil
Rights act of 1968, the person must be engaged in a federally protected
activity, and that activity must be the reason for the crime.28 6 This statute
also does not include crimes based on gender, disability, or sexual orientation.2" Therefore, the principle federal hate crime legislation only covers
crimes committed because of "race, color, religion, or national origin. 2 88
III.
HISTORICAL PERSPECTIVE OF STEREOTYPES OF WOMEN
In the past, women were often considered second-best to men. For years,
women did not have the right to vote, and were denied many of the same
rights to which men were entitled. 289 Traditionally, when a man and woman married, it was viewed as the two coming together as one. 290 Generally, the one unit that resulted from the marriage was controlled by the
man. 2 9 1 The view of women as nurturers predominated with the underlying
29 2
idea that "women give themselves, their bodies, their pleasures to men."
280.
281.
282.
283.
284.
285.
286.
287.
288.
289.
office,
290.
291.
292.
See Gilbert & Marchand, supra note 275, at 957-58.
Id. at 958 (citing 28 U.S.C. § 994 note (1994)).
See id. at 943-44.
See id. at 954.
See id.
Gilbert & Marchand, supra note 275, at 954.
See id.
See id. at 954-55.
Id. at 955 n.99.
See Frontiero, 411 U.S. at 685 (explaining how slaves and women could not hold
serve on juries or hold property in their own names).
See id. at 684.
See id.
STONG ET AL., supra note 42, at 132.
Summer, 2003]
SUPREME COURT AND HOMOSEXUALITY
241
Along with this idea of women being servants to men came certain sexual
scripts.2 93 Women were taught that sex was good in marriage or a committed relationship, but "bad" outside of marriage.2 94 Sex was something to be
saved for your husband, and if a woman did not save herself for marriage,
she would develop a "bad reputation. ' 295 "Women are supposed to remain
pure and sexually innocent."29' 6 The traditional roles indicated that men
wanted sex, while women were looking for love and a relationship.2 9 In a
sexual relationship, women were viewed as the passive partner, while men
were viewed as the active partner.29 8 Because women were viewed as being dominated by men, most laws did not protect women. 299 The legal
system and the rights afforded to the citizens of the United States were
mainly aimed directly at men. 3" In 1873, the views of women at that time,
were expressed in Bradwell v. Illinois.3 °1 "'The paramount destiny and
mission of woman are to fulfil the noble and benign offices of wife and
mother. This is the law of the Creator.' "302
By the 1960s and 1970s, at the same time the Civil Rights Movement
was gaining attention for equal rights of African-Americans, the feminist
movement of the sixties and seventies began a new way of looking at women as men's equals.3 °3 To reflect society's changing views of women,
courts began to change the laws that restricted the constitutional rights of
30 4
women.
A.
Supreme Court's View of Women
Nearly a hundred years after its view of women was illustrated in
Bradwell v. Illinois, the Supreme Court readdressed society's view of women. 30 5 In Frontiero v. Richardson, the Court addressed the issue of a
woman claiming her husband as a dependent.30 6 The Court quoted
Bradwell v. Illinois, and indicated that the views stated in that decision allowed statutes to be written that were "laden with gross, stereotypical dis293.
See id.
294.
295.
296.
297.
298.
Id.
Id. at 132.
Id.
See STRONG
See id.
299.
See Fronteiro,411 U.S. at 685.
ET AL.,
supra note 42, at 132.
300. See id. at 684-85.
301. See id.
302.
Id. (quoting Bradwell v. State, 16 Wall. 130, 141 (1873)).
303. See Andrew Z. Soshnick, Comment, The Rape Shield Paradox: Complainant Protection Amidst Oscillating Trends of State Interpretation, 78 J. CRIM. L. & CRIMINOLOGY
644, 647 (1987).
304.
See id.
305.
See generally Frontiero, 411 U.S. 677.
306.
See id. at 677.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 29:219
tinctions between the sexes."3 7 The Court stated that "the position of
women in our society was, in many respects, comparable to that of blacks
under the pre-Civil War slave codes. ' 30 8 "There can be no doubt that our
Nation has had a long and unfortunate history of sex discrimination. Traditionally, such discrimination was rationalized by an attitude of 'romantic
paternalism' which, in practical effect, put women not on a pedestal, but in
a cage.
30 9
Changes in societal views of women forced the court system to change
many of its laws in order to treat women on an equal footing with men.3 0
The Supreme Court began to view classifications based on sex and race as
"inherently suspect" classes. 31 1 This meant that any statute that affected the
rights of people based solely on race or sex would be subject to "strict
judicial scrutiny. ' 312 The Court stated,
since sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of particular sex because of their sex would seem
legal burdens should bear
to violate "the basic concept of our system that313
some relationship to individual responsibility."
The changing views of society, combined with the willingness of the Supreme Court to recognize the discrimination of women, led to many reforms, including reforms of laws governing prosecutions for rape.3 14
Historically, rape prosecution was as much a trial of the alleged victim as it
was of the defendant. 3 5 During the Victorian era, it was suggested that
women who claimed to have been raped should submit to a psychological
evaluation before trial. 316 "Men's fear of the innocent man being unjustly
accused of rape drove the common law. The testimony of rape victims was
greatly distrusted due to fear that women would lie about the consensual
nature of the sex."' 3 17 The past sexual history of the alleged victim was
relevant in rape trials where consent was the defense, because courts considered it more likely that a woman who had consented to sex on a previous
occasion would have consented to sex in the instance at issue. 3 8 Therefore,
307.
308.
309.
310.
311.
312.
313.
(1972)).
314.
Id. at 685.
Id.
Frontiero,411 U.S. at 684.
See id. at 688.
See id.
Id.
Id. at 686 (citing Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175
See Soshnick, supra note 303, at 647.
315. See Heather C. Brunelli, Note, The Double Bind: Unequal Treatmentfor Homosexuals Within the American Legal Framework, 20 B.C. THIRD WORLD L.J. 201, 207 (2000).
316.
317.
318.
See Soshnick, supra note 303, at 650.
Brunelli, supra note 315, at 208.
See Soshnick, supra note 303, at 652.
Summer, 2003]
SUPREME COURT AND HOMOSEXUALITY
243
courts further victimized rape victims by permitting past sexual behaviors
or predispositions to be entered into evidence.31 9
These obstacles resulted in many women not reporting incidents of
rape. 32 0 As a result, both state and federal courts passed rules of evidence
designed to restrict the sexual history of the victim form being heard at
trial.32 1 In 1978, Congress enacted Rule 412 of the Federal Rules of Evi
dence "which excludes from evidence all reputation and opinion testimony
concerning a rape complainant's prior sexual conduct. 322 States, in turn,
passed their own statutes, called rape shield statutes, to protect women from
becoming the victim during a trial for rape. 3 23 The focus of most of the
rape shield statutes was to prevent the hostile confrontation of the victim in
the courtroom.3 24 Congress and the states reacted to the changing views of
3 25
women in society and sought to create protections for women as a group.
B.
The Rape and Murder of Barbara Williams
In November 1991, after family and neighbors had been trying to obtain
entry into the home of Barbara Williams, a neighbor crawled through a
window into Ms. Williams' apartment.32 6 Inside, the neighbor found Ms.
Williams dead, with multiple stab wounds and an electric cord tied around
her neck. 327 Along side Ms. Williams were two of her children, who were
still alive but had received at least twenty-five stab wounds.32 8 One of the
children explained that a man came through a window and attacked the
family.3 29 Medical tests would later reveal that Ms. Williams had been sexually assaulted both vaginally and anally.33 °
Sharob Clowney, who was later arrested for Ms. Williams' murder, was
at first reluctant to tell the truth about what had happened between himself
and Ms. Williams. 3 His first explanation for the cut on his hands was that
a mirror had broken and caused the wounds. 332 He later told his family that
he had struggled with Ms. Williams and stabbed her children.3 33 At trial,
Mr. Clowney's defense sought to introduce evidence that Ms. Williams was
id.
id. at 651.
generally id.
id. at 645.
generally Soshnick, supra note 303.
319.
320.
321.
322.
323.
See
See
See
See
See
324.
See generally id.
325.
326.
327.
328.
See generally id.
New Jersey v. Clowney, 690 A.2d 612, 615 (N.J. 1997).
See id.
See id.
329.
See id.
330.
331.
See id. at 616.
See Clowney, 690 A.2d at 617.
332.
333.
Id. at 615.
See id.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 29:219
known to trade sex for drugs.334 However, applying New Jersey's Rape
Shield Statute, the lower court held that evidence was inadmissible at
trial.3 35 The jury subsequently found Mr. Clowney guilty of "purposeful or
knowing murder, ...
felony murder, . . .aggravated sexual assault ...
attempted murder, ...
possession of a weapon, a knife, for unlawful purposes .... and possession of a weapon, the same knife, under circumstances
not manifestly appropriate for such lawful uses as it may have. 3 36
On appeal, Mr. Clowney sought to have the lower court's decision to
exclude Ms. Williams' past sexual conduct overturned.3 37 Mr. Clowney
further argued that because Ms. Williams was deceased, the Rape Shield
Statute should not have been applied.3 38
In addressing Mr. Clowney's claims, the appeals court first looked to the
language of the New Jersey Rape Shield Statute which states: "[e]vidence
of the victim's previous sexual conduct shall not be admitted nor reference
made to it in the presence of the jury except as provided in this section."3'39
The statute further states that in making its decision to include or exclude
the evidence, the court will take into consideration whether "the probative
value of the evidence offered substantially outweighs its collateral nature or
the probability that its admission will create undue prejudice, confusion of
the issues, or unwarranted invasion of the privacy of the victim."3 4
Before specifically addressing Mr. Clowney's claim, the court looked to
the past history of rape shield statutes.3"4 ' The court recognized that many
state legislatures had enacted statutes to prevent the rape victim from being
unduly victimized on the witness stand during cross-examination.3 42 The
court further stated: "By ensuring that juries will not base their verdicts on
prejudice against the victim, the statutes enhance the reliability of the criminal justice system. '34 3 The court stated that prior to the enactment of rape
shield statutes, trials often turned into an invasion of the victim's privacy
and a "character assassination." 34
334.
335.
See id. at 617-18.
See id. at 619.
336.
337.
338.
339.
See Clowney, 690 A.2d at 613-14.
See id. at 618.
See id.
Id. (citing N.J.S. 2C:14-4).
340.
Id. (citing N.J.S. 2C:14-4).
341.
342.
343.
344.
See Clowney, 690 A.2d at 620.
See id. at 619.
Id. at 618.
Id.
SUPREME COURT AND HOMOSEXUALITY
Summer, 2003]
C.
245
State in Interest of M.T.S.
In 1992, the Supreme Court of New Jersey heard a sexual assault case
involving a fifteen-year-old girl and a seventeen-year-old boy.34 5 The boy
had been living with the girl's family for some time before the night of the
alleged assault.3 46 The relationship between the boy and the girl had been
"'leading on to more and more.' "
The two offered different views of the
348
night in question.
According to the boy, she invited him into her room
and initially freely participated in the sexual conduct.34 9 The girl alleged
that he forced himself upon her without her consent.3
The issue for the court was how much force was necessary to be considered a sexual assault.3 51 The only force used during the assault was the
requisite force for the boy to vaginally penetrate the girl.3 52 The language
of the New Jersey statute defined "'sexual assault' as the commission 'of
sexual penetration' 'with another person' with the use of 'physical force or
coercion.' ,353 The appellate court determined that in order to be consid-
ered a sexual assault more force was needed than the minimum force required for penetration. 354 The Supreme Court of New Jersey ultimately
held that any force used "in the absence of affirmative and freely given
permission to the act of sexual penetration" constituted sexual assault under
the New Jersey statute. 5
In reaching its determination, the court looked at the historical aspects of
proving rape.356 Quoting Lord Hale, the court stated that historically, "to
be deemed a credible witness, a woman had to be of good fame, disclose
the injury immediately, suffer signs of injury, and cry out for help."3' 57 The
court also noted that historically courts distrusted the victims, "'assuming
that women lie about their lack of consent for various reasons: to blackmail
men, to explain the discovery of a consensual affair, or because of psychological illness.' "358
The court further recognized that this focus on the victim's character
minimized the "importance of the forcible and assaultive aspect of the de345. See generally State in Interest of M.TS., 609 A.2d 1266 (N.J. 1992).
346. See id. at 1267.
347. Id. at 1268.
348.
349.
350.
351.
See
See
See
See
id. at
id. at
State
id. at
1267-68.
1268.
in Interest of M.TS., 609 A.2d at 1267.
1269.
352. See id. at 1268.
353. Id. at 1269.
354. See id. at 1269.
355. State in Interest of M.T.S., 609 A.2d at 1279.
356. Id. at 1270.
357. Id. at 1271.
358. Id.
246
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 29:219
fendant's conduct."3 5 9 Successful prosecutions for rape turned not only on
the defendant, but on the nature of the victim's response.36 ° With the
change in focus away from the victim and toward the defendant, the courts
in New Jersey paved the way for rapid reform in rape prosecutions.36 '
New Jersey's viewpoint, which began to be reflected in other rape reform
legislation, allowed some of the stereotypes about women to begin falling
apart.362 The court system recognized that women had been treated as
poorly as slaves, and rethought women's roles in American culture.36 3 The
change in the court's view of women is no where more obvious then in the
reform of the laws against rape. 36 4 Rape shield laws, unlike the Homosexual Panic Defense, turn the focus onto the perpetrator of the crime, and not
36 5
on the victim.
IV.
THE SUPREME COURT'S SECOND CHANCE TO PROTECT THE
RIGHTS OF HOMOSEXUALS
In 2002, the United States Supreme Court granted certiorari to a Texas
case involving an anti-sodomy statute. 36636In Lawrence v. State,367 the Court
of Appeals of Texas upheld the constitutionality of a Texas anti-sodomy
statute. 368 "John Geddes Lawrence and Tyon Garner were convicted of engaging in homosexual conduct. 3 69 Both men entered pleas of non contendere, so the officer's conduct in arresting the two men was not
challenged.370 The details surrounding the arrest of the two men were not
part of the court's record. 3 7 ' The State of Texas defines deviate sexual
intercourse as "any contact between any part of the genitals of one person
and the mouth or anus of another person; or the penetration of the genitals
or the anus of another person with an object. ' 372 Texas further designates
"engaging in deviate sexual intercourse with another individual of the same
sex" as a class C misdemeanor.37 3
359.
360.
361.
362.
363.
Id. at 1272.
See State in Interest of M.T.S., 609 A.2d at 1272.
See id. at 1274.
See generally Frontiero, 411 U.S. at 690-91.
See id. at 685.
364.
See generally State in Interest of M.T.S., 609 A.2d 1268.
365.
See id. at 1274.
366. See William Mears, Supreme Court will decide legality of state sodomy laws,
CourtTV Online, Dec. 3, 2000, at http://www.cnn.com/2002/LAW/12/02/scotus.sodomy/index.html (last visited Jan. 15, 2003).
367. 41 S.W.3d 349 (2001).
368. See generally Lawrence, 41 S.W.3d 349.
369. Id. at 350.
370. See id.
371. See id.
372. Id. at 350 n.1 (citing TEX. PEN. CODE ANN. § 21.01 (Vernon 1994)).
373. Garner, 41 S.W.3d at 350 (citing TEX. PEN. CODE ANN. § 21.06 (Vernon 1994)).
Summer, 2003]
247
SUPREME COURT AND HOMOSEXUALITY
In holding that the Texas statute did not violate the Equal Protection
Clause of the Fourteenth Amendment, the Texas Court of Appeals analyzed
the purpose behind the Fourteenth Amendment. 374 The court concluded
that the "central purpose of the Equal Protection Clause 'is to prevent the
States from purposefully discriminating between individuals on the basis of
race."' 3 75 After further discussion on the federal and state interpretations of
equal protection, the court determined that "the mere act of governing often
requires discrimination between groups and classes of individuals.
376
The court of appeals also recognized that the original anti-sodomy statute
in Texas prohibited deviate sexual intercourse between not only people of
the same sex, but also people of different sexes.3 77 However, in 1973, the
Texas legislature amended the statute to make it illegal only for people of
the same sex to engage in deviate sexual activity.3 78 The court of appeals
stated that the legislature's reason for making same-sex sodomy illegal was
to uphold the public morals of the state.3 79 The court concluded that most,
if not all, of our laws are based on morality.3 8 ° The court compared the ban
on same-sex sodomy to laws banning the sale of "obscene devices" and
"punishing incest."3'81 The court further stated that because homosexuals
have not been determined to be a suspect class, the "prohibition of homosexual sodomy is permissible if it is rationally related to a legitimate state
interest. '382 Upholding the morals of the state was therefore determined by
the court to be a legitimate state interest. 383 The court cited the Supreme
Court's interpretation of Bowers v. Hardwick 84 in Romer v. Evans38 5 by
stating: "it does not elevate homosexuals to a suspect class; it does not
suggest that statutes prohibiting homosexual conduct violate the Equal Prothe preservation
tection Clause; and it does not challenge the concept that
3 86
interest.
state
legitimate
a
is
morality
and protection of
Like the Supreme Court, the Texas Court of Appeals looked to the historical condemnation of homosexuality as a basis for upholding the Texas statute.3 87 The court concluded that the legislature of Texas, by enacting the
374. See Lawrence, 41 S.W.3d at 351.
375. Id. (citing Shaw v. Reno, 509 U.S. 630, 642 (1993)).
376. Id. at 352 (citing Cesarez v. State, 913 S.W.2d 468, 493 (Tex. Crim. App. 1994)).
377. See id. at 353.
378.
See id.
379. See Lawrence, 42 S.W.3d at 354.
380. See id.
381. See id.
382. Id. at 354.
383. See id.
384. 478 U.S. 186 (1986).
385. 517 U.S. 620 (1996).
386. Lawrence, 41 S.W.3d at 355.
387. See id. at 356.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 29:219
statute, had found "homosexual sodomy to be immoral."38 8 The court did
recognize that sodomy was often made illegal by statutes, but was not always clearly defined.38 9 In its broadest definition, sodomy was defined as
"'carnal knowledge committed against the order of nature by man with
man, or in the same unnatural manner with woman; or by man or woman, in
any manner, with beast.' "390 The court also noted that the Massachusetts
Bay Colony made sodomy between two men illegal. 39 '
A strong dissent, written by Justice John S. Anderson, provides a good
analogy of why the Texas statute does indeed violate equal protection.3 92
Justice Anderson's analysis involves three people in a room together where
two are women and one is a man.39 3 If one of the women leaves the room,
and the remaining woman and the man engage in "deviate sexual intercourse," a sexual act has occurred.3 94 If the woman returns to the room, the
man leaves, and the two women engage in the same "deviate sexual intercourse," a crime has occured.3
95
Justice Anderson concludes that "[w]hile
the acts were exactly the same, the gender of the actors was different, and it
was this difference alone that determined the criminal nature of the
conduct.
39 6
The United States Supreme Court will hear arguments on this case in its
spring 2003 term. 397 The Court has suggested that while considering the
legality of the Texas statute, it will also revisit their 1985 Bowers v. Hardwick decision.39 8 This is a monumental marker in the Court's ability to
change society's views of homosexuals and their rights to privacy.39 9
V.
ANALYSIS
Throughout history, minority groups have been the focus of intense discrimination.40 0 In this country, discrimination against African-Americans
388.
389.
1909)).
390.
1893)).
391.
Id.
See id. (citing Commonwealth v. Poindexter, 133 Ky. 720, 118 S.W. 943, 944 (Ky.
Id. (quoting Prindle v. State, 31 Tex. Crim. 551, 21 S.W. 360 (Tex. Crim. App.
See Lawrence, 41 S.W.3d at 356 .
392. See id. at 368-69 (Anderson, J., dissenting).
393. See id. at 368 (Anderson, J., dissenting).
394. Id. (Anderson, J., dissenting).
395. Id. (Anderson, J., dissenting).
396. Lawrence, 41 S.W.3d at 368-69 (Anderson, J., dissenting).
397. See Mears, supra note 366, at http://www.cnn.com/2002/LAW/12/02/scotus.sodomy/index.html.
398.
See id.
399.
See id.
400.
See generally Armour, supra note 7.
Summer, 2003]
SUPREME COURT AND HOMOSEXUALITY
249
began with the importation of slaves in the 1600s. 0 ' Both African-Americans and Native Americans were enslaved to help build a new nation.4 °2 In
order to keep the slaves in a subservient position, white men openly created
an environment of racism. 40 3 This racism permeated society and ensured
that slaves were looked down upon while white men were to be in power
over the slaves.4 ° 4 Laws were enacted that ensured slaves would not show
any disrespect to their white masters.40 5 Others laws were enacted that specifically addressed preventing the mixing of the races." 6 The underlying
goal of this legislation was to ensure that white men maintained their hold
on power.40 7
In Loving v. Virginia,4 ° 8 the Supreme Court began to address the histori-
cal nature of discrimination based on race. 40 9 The Court addressed the postCivil War amendments that gave more rights to African-Americans.4 10 The
Court stated that the post-war amendments to the constitution were, at best,
intended "to remove all legal distinctions among 'all persons born or naturalized in the United States.' ' ' 4 1 1 In addressing Virginia's miscegenation
statutes, the Court reasoned that these statutes forbade an act that would
otherwise be legal but for the fact it was between people of different
races."' 2 The Court indicated that it has "consistently repudiated
'[d]istinctions between citizens solely because of their ancestry' as being
,odious to a free people whose institutions are founded upon the doctrine of
equality.' "413
The Court began to consider laws based on race as clearly suspect, which
required a heightened standard of review."'4 As a result, many laws were
deemed unconstitutional because they unfairly disadvantaged people based
solely on their race. 41" As the Civil Rights Movement gained support in the
1960s, the Court followed society's lead and began protecting the legal
401. See generally EDMUND S. MORGAN, AMERICAN SLAVERY AMERICAN FREEDOM:
THE ORDEAL OF COLONIAL VIRGINIA (W. W. Norton & Company, Inc. 1975).
402.
See id. at 331.
403.
404.
405.
See id.
See id.
Id.
406.
See
407.
408.
409.
410.
See id.
388 U.S. 1 (1967).
See generally Loving, 388 U.S. 1.
See id. at 9.
411.
Id. (quoting Brown v. Bd. of Educ., 347 U.S. 483, 489 (1954)).
412.
See id. at 11.
MORGAN,
supra note 401, at 331.
413.
Id. (quoting Hirabayashi v. U.S., 320 U.S. 81, 100 (1943)) (alterations in original).
414.
415.
See Loving, 388 U.S. at 11.
See generally id.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 29:219
rights of African-Americans by placing them on similar footing with their
white counterparts.4 16
Similarly, women were historically considered to be under the control
and authority of men.4" 7 Women were thought of as submissive to men,
and were to focus their attention on getting married.4 18 Women were also
to remain sexually pure and naive in order to save themselves for their
husband.4
19
Married women were to relinquish all decision-making to their
42 °
husbands. Women were not given the right to make decisions in respect
to abortions. 421 However, all this began to change in the 1960s and 1970s
with the women's movement and the increased support of feminists.4 22
Laws were slowly changed or held to be unconstitutional if they violated a
woman's rights.4 23 In the landmark decision of Roe v. Wade, women
gained a strong victory in the ability to determine whether or not to have an
abortion.4 24 Roe v. Wade is considered to be the height of the right to privacy as viewed by the Supreme Court.42 5 In Roe v. Wade, the Supreme
Court addressed the history of abortion laws.42 6 The Court recognized that
the ban on abortion was generally thought to be rooted in history and Victorian ideals.4 27 The Court also noted that the majority of anti-abortion legislation was a product of the later half of the 19th century.4 28 Prior to that
time, an abortion performed between the 16th and 18th week of pregnancy
was not an indictable offense.42 9 Ultimately, the Court stated that at the
time of the drafting of the Constitution, "abortion was viewed with less
disfavor than under most American statutes" at the time of the Roe v. Wade
decision.4 30
In addressing the right to privacy, the Supreme Court recognized that
there was no explicit guarantee to the right to privacy in the Constitution.4 31
However, "the Court has recognized that a right of personal privacy, or a
guarantee of certain area or zones of privacy, does exist under the Constitu416.
417.
418.
419.
420.
421.
422.
423.
See id.
See STRONG ET AL., supra note 42, at 132.
See id.
See id.
See id.
See generally Roe v. Wade, 410 U.S. 113 (1973).
See generally Soshnick, supra note 303.
See id.
424. See Roe, 410 U.S. 113 (1973).
425. See generally id.
426. See id.
427. See id. at 142.
428. See id.
429. See Roe, 410 U.S. at 142.
430. Id. at 140.
431. See id. at 152.
Summer, 2003]
SUPREME COURT AND HOMOSEXUALITY
251
tion. ' 4 32 The Court has made it clear that the right has some extension to
activities relating to marriage, procreation, contraception, family relationships, child rearing and education.4 33 In Frontiero v. Richardson,43" the
Court compared the discrimination against women to the discrimination
against African-Americans. 4 35 The Court stated that race, national origin
and gender are all "immutable characteristics" determined by birth.436
Like African-Americans and women, homosexuals have seen a history of
discrimination. From a time in Ancient Greek society where homosexuality
was actually considered a norm, society, largely fueled by Christian ideals,
began to condemn homosexuality. 43 During the 1960s and 1970s, when
the Civil Rights Movement was taking place, a gay rights movement was
also underway.4 38 However, this movement did not trigger the same
sweeping societal changes that both the Civil Rights Movement and the
women's movement triggered.4 39 Homosexual biases continued to permeate American society and culture, and the laws have not changed as substantially to protect the rights of homosexuals. 440
The Supreme Court has recognized the discrimination against AfricanAmericans and against women. 44 ' However, in a decision such as Bowers
v. Hardwick," 2 the Supreme Court has continued to promote the stereotypes of homosexuals. The Court took a statute that made no distinction
between heterosexuals and homosexuals and completely focused their attention on homosexuals and the "traditional" views of homosexuality." 3
Views like these supported by the majority in Bowers v. Hardwick perpetuate the idea that homosexuals are somehow outside of the boundaries of the
normal idea of family."' Homosexuals who engage in activities that go
against Christian beliefs are viewed as deviants in society. 4 4 ' The Supreme
Court, while looking at discrimination based on race and gender, focused on
the historical perspectives of women and African-Americans. 446 The Court
432.
Id.
433.
See id.
434.
435.
436.
411 U.S. 677 (1973).
Frontiero v. Richardson, 411 U.S. 677 (1973).
Id.
437.
See Francisco Valdes, Unpacking Hetero-Patriarchy:Tracing the Conflation of
Gender & Sexual Orientation to It's Origins, 8 YALE J.L. & HUMAN. 161, 202 (1996).
438. See generally id. at 211.
439. See generally Christina Pei-Lin Chen, Note, Provocation'sPrivilegedDesire: The
Sex,
Provocation Doctrine, "Homosexual Panic," and the Non- Violent Unwanted Sexual Advance Defense, 10 CORNELL J.L. & PUB. POL'Y 195 (2000).
440.
441.
442.
443.
444.
445.
446.
See generally id.
See Frontiero,411 U.S. 677.
478 U.S. 186.
See Bowers, 478 U.S. at 199 (Blackmun, J., dissenting).
See generally Chen, supra note 439.
See id.
See generally Frontiero,411 U.S. 677. See also Loving, 388 U.S. 1.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 29:219
recognized that the historical treatment of both groups had led to widespread discrimination." 7 However, when looking to the historical views of
homosexuals, the Supreme Court indicated that because the ideas against
homosexual acts are so rooted in tradition and history they are still allowed
to be supported by the laws of this country. 4 48 However, African-Americans were traditionally viewed as being subservient to white men, and women were traditionally viewed as being docile and dependent on their
husbands. 4 9 Recognizing that society has advanced beyond these traditional views of African-Americans and women, the Supreme Court has
made laws that discriminate on the basis of race or gender unconstitutional.4 5 ° It is only with homosexuals that the Supreme Court continues to
uphold the historically stereotypical views of homosexuals as deviants from
traditional Judeao-Christian morals. 4 5'
This stereotype is allowed to permeate society and the stereotypes that
enable defenses such as the homosexual panic defense.4 52 Only for crimes
against homosexuals does there exists a defense that, because of their sexual orientation, a heterosexual is somehow justified in beating or killing the
homosexual.4 5 3 A man who beats his wife can no longer say "she is my
property[,]" or because of her status as a woman, she is entitled to be
beaten.4 54 Similarly, in the case of African-Americans, society no longer
tolerates the beating and killing of African-Americans simply because of
their skin color.4 55 It is only for homosexuals that society somehow provides an excuse for torturing and killing.45 6
Defense attorneys are allowed to put the homosexual victim on trial.4 57
They talk about the advances, or perceived advances, made toward the "unsuspecting" heterosexual 458 and they ask the heterosexual how it made them
feel.459 Often times, they try to suggest that, as children, the heterosexual
had been the victim of same-sex sexual abuse.4 60 This abuse, they claim,
later leads the heterosexual to justifiably lash out and harm the homosexual
whom they perceive as making a sexual come-on.4 6 '
447.
448.
449.
450.
451.
452.
453.
454.
455.
456.
457.
458.
459.
460.
461.
Frontiero, 411 U.S. at 677.
See generally Bowers, 478 U.S. at 186.
See generally MORGAN, supra note 401.
See generally Loving, 388 U.S. 1; Frontiero,411 U.S. 677.
See generally Bowers, 478 U.S 186.
See generally Chen, supra note 439.
See id.
See generally STRONG ET AL., supra note 417.
See generally King v. State of Texas, 29 S.W.3d 556 (Tex. Crim. App. 2000).
See generally Chen, supra note 439.
See id.
See id.
See id.
See id.
See Chen, supra note 439.
Summer, 2003]
SUPREME COURT AND HOMOSEXUALITY
253
This idea, however, does not translate into the same reaction for women.
Many women are abused sexually by men. Many women receive unwanted
sexual advances from men. However, what you rarely, if ever, hear is a
woman lashing out at a man after an unwanted sexual advance because of
her prior sexual abuse. Society would probably not think a woman is justified for beating and killing a man simply because the man made a verbal
come-on to the woman.46 2 A man coming on to a woman is still considered
"normal" and expected.4 63 However, a man coming on to another man is
still considered abnormal.4 64
Society, backed by court decisions such as Bowers v. Hardwick, continues to play up homosexual stereotypes.4 65 Homosexuals are still viewed as
deviants of society.46 6 Homosexuality is considered a choice that goes
against the established views of what roles men are to play in society.4 67
Through legislation such as the Defense of Marriage Act and anti-sodomy
laws, the court system continues to carry on and allow these negative stereotypes of homosexuals to exist. 4 68 However, it has been demonstrated
through many studies that homosexuality is, like race and gender, determined by birth.4 69 It is something over which an individual has no control.47 ° Yet, the Supreme Court has not been willing to extend the same
protection to homosexuals that it has already extended to African-Americans and women.47 1
C. Ray Cliett
462.
See id.
463.
See generally STRONG
464.
See id.
465.
466.
467.
468.
469.
470.
471.
478 U.S. 186 (1986).
See Boutilier v. INS, 387 U.S. 118 (1967).
See generally STRONG ET AL., supra note 417.
See generally id.
See id. at 158.
See generally Chen, supra note 439.
See generally Frontiero,411 U.S. 677.
ET AL., supra note
417.
254
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