Featured on San Francisco Examiner – https://www.sfexaminer.com/time-to-act-up-in-the-wake-of-dobbs.html
The Supreme Court’s decision yesterday in Dobbs v. Jackson Women’s Health does more than overturn the landmark 1973 Roe v. Wade ruling, which held that pregnant people have a constitutional right to abortion health care under the 14th Amendment’s Due Process Clause. The Supreme Court’s attack on privacy rights is about controlling people’s bodies and most intimate actions and Dobbs brazenly threatens a panoply of fundamental privacy protections.
Those rights range from contraception to consensual sexual activity to same-sex and interracial marriage. Justice Alito’s majority opinion is based on the premise that the 14th Amendment does not protect privacy rights unless they are “deeply rooted in the nation’s history and tradition.” Justice Thomas’ concurrence goes even further by opining that the “Due Process Clause does not secure any substance rights” and expressly argues that the Court should reconsider Griswold v. Connecticut (right of married people to obtain contraceptives), Lawrence v. Texas (right to private, consensual sexual acts), and Obergerfell v. Hodges (right to same-sex marriage).
We are a married queer couple and law professors. One of us is a nationally recognized health law professor at the University of California Hastings College of the Law and an Army veteran, while the other is a criminal law professor who has spent her career representing wrongly convicted people. The privacy rights on the Supreme Court’s chopping block are deeply personal to us. Our Key West, Florida marriage might be nullified. More terrifying, we could both be charged under old laws that ban private consensual sodomy. Fourteen states still have laws on the books that criminalize consensual oral and anal sex. Kansas, for example, criminalizes sodomy between “members of the same sex,” while Texas outlaws “homosexual conduct” and Florida bans “unnatural acts.”
This Pride month, states have introduced bills to ban drag queens from reading to children at public libraries. Conservative activists have accused the LBGTQ+ community of “grooming” and “sexual brainwashing” children. QAnon conspiracies of pedophile rings echo false allegations against gay men from our recent past. And, amidst the backdrop of rainbow flags and other gay pride merch, extremists organized an attack on a Pride festival in Coeur d’Alene, Idaho.
The protections that LGBTQ+ people in this country cautiously rely on to secure employment, housing and personal safety are all linked to constitutional privacy and are all in peril post-Dobbs. We cannot be shamed and retreat to the shadows. Our community must join in solidarity with our marginalized and racialized neighbors and look for inspiration to our history of resistance. We must ACT UP.
In the 1980s, gay men were dying of AIDS — initially mislabeled as “gay-related immune deficiency” (GRID) — at a frightening rate. The community suffered widespread loss of friends, intimate partners and mentors, yet President Reagan refused to utter the word “AIDS” and address the health crisis. In 1986, the Supreme Court decided in Bowers v. Hardwick that it was constitutional for states to criminalize homosexual sodomy in private places. Federal law condoned the arrest, prosecution and imprisonment of queer people for engaging in consensual sex with their intimate partners in their own homes.
At the same time, states were wrongfully convicting gay men and women during a national hysteria surrounding alleged “satanic ritualistic abuse” at day care facilities. These purported “abuse” conspiracies were completely fabricated, but they became popular by bolstering the longstanding criminal archetype of queer people as sexual predators. The very first satanic ritual abuse conviction took place in 1985 against Bernard Baran — an openly gay teacher and a day care provider. Childcare providers perceived as gender and sexual deviants were swept up as defendants during this moral panic. All of this sounds eerily similar to the 2022 attacks on the LGTBQ+ community.
In 1987, however, queer activists decided to fight back. They organized ACT UP: AIDS Coalition to Unleash Power. ACT UP dispelled myths about AIDS, protested the deaths of LGBTQ+ people from AIDS, and urged a governmental response to the pandemic through the funding of AIDS research. Organizers led “die-ins” and reclaimed the Nazi-era pink triangle symbol of homosexuality, loudly proclaiming “silence = death.” The community was “united in anger.”
ACT UP made visible to Americans their gay community members dying from AIDS. LGBTQ+ activists used research to offer viable proposals to test experimental treatment on HIV-positive volunteers. ACT UP’s two-prong strategy of angry activism and reform proposals provoked the government to fund AIDS research and grant HIV-positive patients access to new therapeutics. The organization’s successes also encouraged a new generation to safely come out of the closet.
Thanks largely to the relentless efforts of ACT UP and similar groups, scientists discovered a viable treatment for HIV in 1996 and the disease no longer carries a death sentence. National gay rights activism also motivated 40 states to decriminalize sodomy by 2003 — the same year that the Supreme Court finally ruled that consenting adults had a fundamental right to private sexual conduct in Lawrence v. Texas.
Fast-forward to today. As part of an intense anti-gay backlash, numerous states have either introduced or enacted anti-trans and “Don’t Say Gay” legislation. These laws rely on the old caricature of LGBTQ+ people as dangerous, depraved and violent and punishing people for being “unacceptably” gendered. And the Supreme Court is on the warpath.
What can we do if LGBTQ+ sexual expression is re-criminalized? Who will stand up for parents arrested for child abuse for seeking evidence-based health care for their trans child? We must ACT UP.
We need to nationally organize to lobby the states and federal government to put protections in place before the Supreme Court’s near-term gutting of our intimate privacy rights. Even in states where it is impossible to motivate right-wing legislators to protect the gay community, progress is possible at the local level. Some prosecutors, for example, have already pledged that they will not bring criminal charges against pregnant people who have abortions; they can pledge to not bring charges against gay people if consensual sex becomes criminal again. At the height of the AIDS health crisis in the 1990s, judges responded by dismissing low-level charges against HIV-positive defendants in the interest of justice. They also dismissed charges against ACT UP activists and protected protesters and the principles of free speech.
The Dobbs decision is just the first step in the far right’s campaign to criminalize how we use our bodies and express our identities. We must organize and fight back, with solidarity, education, resistance and persistence. We must ACT UP.
Jennifer Oliva is a professor of law at the University of California Hastings College of the Law, where she specializes in health care law and policy and is affiliated with the UCSF/UC Hastings Consortium on Law, Science & Health Policy.
Valena Beety is author of the forthcoming book Manifesting Justice: Wrongly Convicted Women Reclaim Their Rights. She is deputy director of the Academy for Justice and a professor of law at the Arizona State University Sandra Day O’Connor College of Law.
