Policy,Ritual,Purity: Gays and Mandatory AIDS Testing

A longer version of this paper, together with three other essays on the AIDS crisis, appears in Mohr RD , Gays/justice: A study of ethics, society, and law, New York: Columbia University Press, 1988. For critique of coercive measures other than mandatory testing—for example, quarantines, bathhouse closings, and invasions of privacy— see Mohr RD , AIDS, gay life, state coercion, Raritan 1986, 6(1): 38–62; Mohr RD , AIDS, gays and state coercion, Bioethics 1987, 1(1): 35–50.

Brown v. Board of Education, 347 U.S. 483 (1954); Clark v. Thompson, 206 F. Supp. 539 (S.D. Miss. 1962), aff'd, 313 F.2d 637 (5th Cir), cert, denied, 375 U.S. 951 (1963).

Palmer v. Thompson, 403 U.S. 217, 219–21, 226 (1971).

By “public good” I mean a good that everyone wants but cannot get or get efficiently through voluntary arrangements and that, for its realization, thus requires coercive coordination from the state—typically to circumvent “free riders”—so that each person gets what she or he wants. Examples of such public goods are national defense, water purification, and equal opportunity. In this paper I do not use the term “public health” to pick out a public good in this technical sense, but use it only in an operational, non-normative, adjectival sense to designate people, actions, institutions, and the like that are typically referred to in ordinary English usage as elements of the public health community and its behavior.

The Advocate (Los Angeles), July 7, 1987, no. 476: 11.

President calls for widespread testing, New York Times, June 1, 1987: 1, 11. All references to the New York Times are to its national edition.

AIDS test ordered for U.S. prisoners and immigration, New York Times, June 9, 1987: 1.

When the implementation of the Illinois testing law proved socially unwieldy, its Senate sponsor claimed that “the cost of implementing the law was not a consideration in creating it”; Prenuptial AIDS screening a strain in Illinois, New York Times, January 26, 1988:1. See also Illinois backs AIDS tracing, New York Times, July 1, 1987: 9; Veto of AIDS bills urged in Illinois, New York Times, July 7, 1987: 11. Illinois was the first state to have its legislature pass mandatory marital AIDS-antibody testing. Between the passage of the bill and its signing by Illinois' governor several months later, Louisiana's legislature passed and its governor signed such legislation; the bills in both states went into effect on January 1, 1988. Broad laws on AIDS signed in Illinois, New York Times, September 22, 1987: 15; AIDS bills focus on education, Chicago Tribune, September 22, 1987:1

AIDS test ordered for U.S. prisoners and immigration, New York Times, June 9, 1987: 1.

The American Medical Association, for example, is on record as supporting testing of prisoners and immigrants. Doctors' panel suggests limited AIDS testing, New York Times, June 21, 1987: 19.

For discussion of the social inefficiency and immorality of mandatory marital, military, and prison testing, see Mohr , Gays/justice, supra note 1, chapter 10.

For an analysis of sacred or priceless values in government deliberations, see MacLean D , Social values and the distribution of risk, in MacLean D , ed., Values at risk, Totowa, NJ: Row-man and Allanheld, 1986: 85–93.

Douglas M , How institutions think, Syracuse: Syracuse University Press, 1986: 4.

Rich A , Compulsory heterosexuality and lesbian existence, Signs 1980, 5(4): 631–60.

Mary Douglas explains: “(T)he thought style [of a society] sets the precondition of any cognition, and determines what can be counted as a reasonable question and a true or false answer. It provides the context and sets the limits for any judgment about objective reality. Its essential feature is to be hidden from the members of the thought collective.” Douglas, supra note 13 at 13.

For cases and discussion, see Krause HD , Family law, 2d ed., St. Paul: West, 1983: 31–74.

See, for example, Singer v. Hara, 522 P.2d 1187, 1194–95 (1974). in which Washington's supreme court held that the requirement that men marry one but not the other gender was not a requirement that triggered a state constitutional bar on distinctions made with respect to gender. See also Adams v. Howerton, 486 F. Supp. 1119, 1124–25 (C.D. Cal. 1980), in which the court claimed that even if gays did have a fundamental right to marry, a bar on gays marrying would still be upheld because necessary to a compelling state interest.

Loving v. Virginia, 388 U.S. 1 (1967) (held that the Equal Protection Clause bars anti-miscegenation statutes).

See Nalty BC , Strength for the fight: A history of black Americans in the military, New York: Free Press, 1986; and Hull E , Without justice for all: The constitutional rights of aliens, Westport, CT: Greenwood Press, 1985: Chapter 1.

See Rivera RR , The military, in Dalton H Burris S , the Yale AIDS Law Project, eds., AIDS and the law: A guide for the public, New Haven, CT: Yale University Press, 1987: 221–34.

See Harry J , Homosexual men and women who served their country, Journal of Homosexuality 1984, 10 (1–2): 117–25.

See Béarubéa A , Gays at war, Mother Jones, February—March 1983, 8(11): 23–29, 45; Marching to a different drummer, in Snitnow A , eds., Powers of desire: The politics of sexuality, New York: Monthly Review Press, 1983: 88–99.

AIDS test ordered for U.S. prisons and immigration, New York Times, June 9, 1987: 22.

Ratchford v. Gay Lib, 434 U.S. 1080, 1082 (1978). Though the genre of dissent from a denial of certiorari requires Rehnquist to have stated the position as a hypothetical, his immediately preceding discussion of the facts of the case makes it clear that he does indeed accept the hypothesis as true.

For a mainstream piece of influential hysteria comparing AIDS to airborne viruses, see Restak R , Worry about survival of society first; then AIDS victims' rights, Washington Post, September 8, 1985: C1.

United States v. Salerno, 107 S. Ct. 2095 (1987).

United States v. Hohri, 107 S. Ct. 2246 (1987).

Korematsu v. United States, 323 U.S. 214 (1944). Justice Jackson warned in dissent that “the principle [that the innocent, the merely potentially dangerous, may be put in concentration camps] … lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” Id.: 246.

See Merritt DJ , Communicable disease and constitutional law: Controlling AIDS, New York University Law Review 1986, 61: 739–99.

Bowers v. Hardwick, 106 S. Ct. 2841 (1986). For a detailed critique of Bowers, see Mohr RD Mr. . Justice Douglas at Sodom: Gays and privacy, Columbia Human Rights Law Review 1987, 18(1): 43–110.

See, for example, Meyer v. Nebraska, 262 U.S. 390, 399–401 (1923) (giving parents a constitutional right of substantive due process to have their children taught German); Pierce v. Society of Sisters, 268 U.S. 510, 534–35 (1925) (substantive due process used to strike down a law requiring parents to send their children to public schools); and Moore v. City of East Cleveland, 431 U.S. 494 (1977) (substantive due process used to void a zoning ordinance barring grandchildren from living with their grandparents). Moore provided the constitutional standard that was used in Bowers, 106 S. Ct. at 2844, to claim basically that gays have no place in the constitutional scheme of the United States: “Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition. It is through the family that we inculcate and pass down many of our most cherished values, moral and cultural.” Moore, at 503–4, footnotes omitted.

Douglas , supra note 13 at 4.

Five-year plan to fight AIDS drafted by New York, New York Times, May 25, 1987: 11.

See, for example, Altman D , AIDS in the mind of America, Garden City, NY: Doubleday, 1986: Chapter 3.