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Discriminatory State Law Struck Down

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Discriminatory State Law Struck Down 5th Freedom A PUBLICATION FOR THE BUFFALO CAY COMMUNITY MARCH 1983 FREE "The Freedom to love whomever and however we want" DISCRIMINATORY STATE LAW STRUCK DOWN The February 23rd ruling by the New York State Court FIFTH FREEDCM INTERVIEWS of Appeals, which struck down one of the state's loiter- ing laws, culminated many months of legal struggle that ROBERT UPLINGER began in Buffalo, New York. In August 1981 Robert Up- linger was arrested on Buffalo's North Street for solici- Qj_ "How do you feel now that a decision has been rendered ting an undercover male police officer. He was convicted by the Court, Bob?" by City Judge Timothy Drury for violating that section of it's the loitering law which dealt with using a public place A: "I'm happy that all worked out. But it's not then for soliciting another person to engage in a "deviate" enough. If gays don't do anything after this case, sexual act. This conviction was initially upheld by Erie forget it. It didn't mean a thing! It would be a shame County Judge Joseph P. McCarthy. Represented by William if gays didn't get involved after they are aware of Cun- ningham's appeared Gardner, a Buffalo lawyer associated with the firm of response that in the paper. The gay Hodgson, Russ, Andrews and Goodyear, Uplinger carried his community has a real responsibility and you (Uplinger appeal to New York State's highest court. pointing his finger at the reporter) as part of one of The loitering law that was just struck down existed the gay organizations in Tuffalo have got to get out on the books as a companion statute to the state's con- there and be involved. sensual sodomy law, which was declared unconstitutional Q: "How has this whole affair changed your life?" in December 198C. The Court of Appeals ruling stated: "We held in People vs. Onofre that the state may not con- A: "I found that my friends were supportive, and that in- stitutionally prohibit sexual behavior conducted in pri- cluded my straight friends at work. Family was also sup- talk the vate between consenting adults. The object of the loiter- portive when I was able to about circumstances belong. ing statute is to punish conduct anticipatory to the act of the case with them. I know that we, as gays, of consensual sodomy. Inasmuch as the conduct ultimately We are as much a part of this community as anyone else." contemplated by the loitering statute may not be deemed Q: "Why did you choose criminal, we perceive no basis upon which the state may to fight the system and 1 continue to punish loitering for that purpose." one of its existing However, the Court indicated that its decision was not laws?" directed toward instances in which people are being offen- sive or annoying to others. They also noted that where A: "The whole thing money changes hands for the purpose of sexual acts, such gan one night when I was activity is still illegal in New York State. walking in my own neigh- Judge Matthew Jasen of Orchard Park was the only dis- borhood, a neighborhood senter in the six to one vote. He wrote that "No person I have chosen to live in should have the right to create a public nuisance or dis- because of its reputatior turb others on the street so that he may later engage in of being open and under- private sexual conduct." He argued that the Legislature standing to residents had acted appropriately in terms of the Constitution. who happen to be gay. In the two-page majority decision its author wrote: After some fifteen or "We do not hold that the Legislature cannot enact a law twenty minutes of con- versation with this guy prohibiting a person from accosting another in an offen- ticketed... asked him over to my Cars are still sive manner or in an inappropriate place even if the un- I from arrest apartment. That was af- Are gays now safe derlying purpose is not a violation of law. However, it for meeting on the streets? ] is apparent from the wording of this statute that it was ter he had said "No" to 1 arrested aimed at proscribing overtures, not necessarily bother- my direct question of whether he was a cop. He some to the recipient, leading to what was at the time mc on the spot. offer the the law was enacted, an illegal act." I have never said that I did not make the to arresting officer. My contention was that I had the BUFFALO POLICE REACTION right to do what I did in talking to him on the street, and inviting him back to my place for the purpose of en- The February 24 "final" edition of the BUFFALO NEWS joying sex with each other. At the time of the City 10 carried two stories about the ruling. Buried on page Court hearing, the situation was really botched up when (dateline of the Sport's section, the main article Albany) a city attorney did not inform one of his witnesses that detailed the case and the Court of Appeals decision in the issue was related to homosexuality. Also, there was second five columns, the full width of the page. The ar- not one gay person who was asked to testify at that time. ticle, written by a local reporter, was headlined, "Court was on the right track to fight Officers." I was convinced that I Decision on Loitering Law Upsets Buffalo Police back. Commissioner The local story quoted Buffalo Police Through all of this I have come to grips with my being the of James B. Cunningham and personnel from Bureau an American. As one who pays nearly 40% of his income in Investigating. Their comments were stongly critical Vice taxes, I realized that I am entitled to everything the of the ruling, expressing their frustration at contempo- United States has to offer. There is a system to work appli- rary courts of law and their interpretations and through, and as a citizen and taxpayer I am entitled to cation of the United States Constitution. protection from an unfair law." (continued page 12) Responses to this historic court decision and to the reactions of Buffalo officials were quickly set in mo- tion by Mattachine's Legal Committee, this newspaper's FIFTH FREEDCM SPECIAL pages 7-10 staff and other friends and supporters of Mattachine. REPORT, One of the actions was an attempt to set up interviews local "parties" Uplinger, Gardner and "LIVING THE GAY LIFE STYLE... with the three — ...STAYING OUT OF JAIL" Cunningham. Questions asked of them by this reporter and their answers comprise the rest of this feature. Editorial Volume 13, Number 3 A Qualified Victory STRUCK DOWN 1 Gay people in New York State scored a major legal vic- STATE LAW tory last month when the State Court of Appeals struck MATTACHINE NEWS 2 down the provisions of the state loitering law for the TRAINING 3 purpose of soliciting another person to engage in a sexu- COUNSELOR al act. CCWUNITY EVENTS .3 and doesn't mean are is- What the victory means — 4 sues covered thoroughly in—this special edition of the CUT AND ABOUT FIFTH FREEDCM. SELECTIONS 5 York State owe a special Gay people throughout New 6 debt of gratitude to William Gardner, the Buffalo attor- COWUNITY CALENDAR ney who waged the long, hard battle of words and docu- SPECIAL REPCRT 7-10 court's and Robert ments that resulted in the decision, 11 Uplinger, who made the courageous decision to challenge B4MA BOOK REVIEW the law and suffer all the negative publicity that accom- GLCC NEWS 11 panied that challenge. 13 The overturn of the loitering law this year, and the CONCERT PAGE state's sodomy law in December 1980 (which Gardner also CCMIX -. • 14 in) from the books the two major laws had a role remove .15 that were used as weapons of oppression and discrimina- GAY DIRECTORY tion against gays. But let no one be deceived that the WANT ADS 15 battle is over. Consider the quotes of Police Commissioner James Cun- ningham, as reported by the BUFFALO NEWS, after receiving word of the court decision. interpreted the decision as The commissioner wrongly monthly by the Mattachine Society of the added that "our THE FIFTH FREEDOM is published one that will"legalize public sex," and Niagara Frontier Inc., P.O. Box 155, Ellicott Station, Buffalo, New York 14205. courts are going astray." Published by and for the gay community with a circulation of 2,500 monthly, it Buffalo's top cop then said: "I think we have to read is distributed free of charge through any establishment or organization per- that (U.S.) constitution and see if our forefathers meant mitting such distribution. Subscriptions available at a yearly rate of $5 annually to protect the good guys or the bad guys. The things to cover postage and handling. All mailing sent in a plain, sealed envelope. that are being legalized these days would have been pun- The presence of the name, picture or other representation of a business ished with the dunking stool or the iron boot when that organization or person(s), in this newspaper is not an indication of the sexual business. document was drafted." preference of such person(s), organization or FIFTH welcomes the submission of items, articles, The commissioner's startling statements exhibit an AT- THE FREEDOM news with ruling letters, drawings, photographs, poetry and short fiction from the gay com- TITUDE towards gays that will not go away a and releases from gay organizations are placed free community must munity.
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