Lawrence v. Texas & Defamation Law

Under the common law, wrongly calling somebody gay could get you sued for defamation and you would almost automatically incur damages, even if the plaintiff could not prove that they had suffered any tangible loss as a result.  In cases of defamation "per se," courts would presume an injury that had to be compensated.  The underlying rationale for this was that an "imputation of homosexuality" was tantamount to a charge of sexual criminality.  Of course, prior to Illinois's adoption of the Model Penal Code reforms in 1961, gay sex (and all anal or oral sex, actually) was unlawful in every U.S. jurisdiction.

By the time the Supreme Court decided Lawrence v. Texas in 2003, declaring unconstitutional laws penalizing consensual, private adult gay sex, many states had modified their common law rules to drop the presumption that falsely calling somebody gay was defamatory without proof of actual tangible injury, but some had continued to cling to the old rules -- and not all in states that still had criminal sodomy laws.  Even in "enlightened" New York, trial courts continued to hold that a false imputation of homosexuality was presumptively harmful to the reputation of the "victim."  In 2004, shortly after Lawrence, a federal district court in Massachusetts decided that Lawrence v. Texas should end this practice.

Another court has now come along to say that Lawrence changes the defamation rules.  In Greenly v. Sara Lee Corporation, 2008 Westlaw 1925230 (E.D. Cal., April 30, 2008), a man is suing his former employer and his former supervisor for employment discrimination and a variety of other state law claims, among them, a defamation claim directed against the supervisor.  Mr. Greenly charges a false imputation of homosexuality.  U.S. District Judge Willaim B. Shubb, ruling on defendants' summary judgment motions, granted the motion as to this claim.  He found that the alleged defamatory statement concerning homosexuality was made orally, and thus was analyzed under the law of slander, which "would require a showing of actual damages." 

In a footnote, Judge Shubb explains, "The majority of the courts that have previously found an accusation of homosexuality to be slander per se emphasized the fact that such a statement imputed criminal conduct.  The United States Supreme Court effectively extinguished this rationale in Lawrence v. Texas, where the Court held a Texas statute criminalizing same-sex sexual conduct was unconstitutional under the Due Process clause because individuals have a 'right of privacy' to engage in sexual acts in their homes.  The court also found that precedent to the contrary 'demeans the lives of homosexual persons.'  This court acknowledges that '[c]ontinuing to characterize the identification of someone as a homosexual [to be] defamation per se has the same effect,'" citing Albright v. Morton, 321 F. Supp.2d 130 (D. Mass. 2004).

These post-Lawrence defamation decisions have not received much attention, but they bear witness to a cultural evolution concerning attitudes about homosexuality.  When I was a young law school graduate studying for the bar exam and first encountered the defamation per se rule regarding homosexuality in my bar review course, I found it quite wounding -- that the law would presume that mistakenly calling somebody gay automatically degraded that person's social standing so inevitably that injury could be presumed and damages awarded without any showing of tangible injury was just one reinforcement of my instinctive judgment that staying in the closet was the prudent course if I wanted a career as a lawyer.  The observation by the Massachusetts court, echoed here by District Judge Shubb, is quite correct.  And this little adjustment in the common law marks yet another interstitial move as the law adjusts to the idea of gay people as equal citizens.  A slow progress to be sure, but every little advance is worth mentioning.