THE SUPREME COURT DECISION ON CIVIL LIBERTIES AND THE PANDEMIC: LESSONS FROM AIDS

WORLD AIDS DAY REFLECTION, 12/1/2020

by Lawrence D. Mass

Imagine the headline: The Supreme Court Affirms the Right of Gay Men to Have Sex in High-Risk Venues.

On the basis of its recent decision about civil liberties in relation to gatherings for religious services, can we assume that the Supreme Court would have voted likewise in favor of not placing any restrictions on the gay sex venues, chiefly the bathhouses, that were comparably designated by health officers as high risk for the spread of HIV/AIDS?

When it came to gay sex in the early period of AIDS, there was protracted debate within the gay community as well as among mainstream observers about whether restrictions should be placed on gay sex venues. Eventually, bathhouses were closed in the highest risk areas.

In those times of the early 1980’s when there were no civil liberties protections for gay people, voices of concern for civil liberties, including mine, rang out. If you give government offices the right to curtail private gatherings, how soon would that extend to private bedrooms?

Ironically, gay men who criticized the bathhouse closures were using some of the same arguments, and coming up with some of the same conclusions, as the Supreme Court in its recent decision on civil liberties and religious gatherings. In both cases, individual freedom and the right to assemble were held to prevail over social concerns.

The complexity and difficulty of the situation is summed up in the title of a book on the bathhouse controversy by medical ethicist Ron Bayer: Private Acts, Social Consequences.

As it turns out, these cases do not have a one-size-fits-all, one-time-fits-all solution. Many bathhouses have remained open, providing good venues for education and testing. Instead of being seen only as the problem, they became part of the solution.

The same could be done with religious gatherings. From within their own ranks, enterprising ways could be found to educate participants — to provide masks, testing, social distancing and other advisories. Instead of being only the problem, religious gatherings could become part of the solution.

— -Lawrence D. Mass, M.D., co-founder, Gay Men’s Health Crisis