Jan. 16, 2003 -- Sticks and stones may break your bones, but some names may lead to lawsuits. At least that's true in most states if someone calls you gay, even if the name-calling did not result in major economic damage.
But that may be changing. The U.S. Supreme Court has the chance to hand down a milestone gay rights decision this spring when it considers Lawrence vs. Texas, a case that challenges Texas' same-sex sodomy law, which criminalizes sexual practices among gays that are legal between heterosexuals.
Sodomy laws, on the books in more than a dozen states, do not just regulate sexual behavior; they have also served as a basis for slander and libel lawsuits.
A Texas appellate court just upheld an argument last month made by a state inmate who says he was slandered by a corrections officer who allegedly called him "queer" within earshot of other prisoners.
In the Texas case, the inmate claimed he was automatically slandered and should not have to prove damages because being called gay is "defamatory per se." In laymen's terms, that means the phrase used is so well-understood to be damaging, that no damages need be proven.
If someone is called gay in a state where sodomy is a crime, they are by definition also being accused of criminality, which could be grounds for a defamation per se claim. Historically, other categories included being implicated to have a "loathsome disease," such as leprosy, having one's business or profession damaged and being accused of sexual misconduct.
Thinking Less of Being Gay
Legal experts say that even if the high court does not decriminalize sodomy when it rules on Lawrence this spring, individuals called "gay," "queer" or any similar name will still have a case for defamation per se because in most places, a significant percentage of the community still considers homosexuality to be a form of sexual misconduct.
"It has nothing to do with the fact that the American Psychiatric Association has declassified homosexuality as a disorder, nothing to do with the fact that you may be living in a community with a large number of gay people," said W. Wat Hopkins, a professor at Virginia Polytechnic Institute and State University. "The question is, would a significant minority of the community think less of the person?"
Defamation per se is more clear cut if the plaintiff says that he has been wrongly called gay. Gay people who have been "outed" do have grounds for claims, but many may not want to pursue litigation if they are trying not to draw attention to their sexual orientation, experts say.
"The people protected here are usually straight people who do not want to be associated with homosexuality," said Jonathan L. Entin, professor of law and political science at Case Western Reserve University.
Being Called Black Once Slanderous
Defamation per se is an argument Tom Cruise used when he sued a gay porn star and his ex-wife for alleging in tabloids that Cruise had an affair with the man. Cruise alleged that being called gay in California is libel per se because being called gay exposed him to "hatred, ridicule and humiliation." A Los Angeles judge awarded him $10 million in a default judgment after defendant Chad Slater admitted his story was false and said he would not defend himself against the suit, according to Cruise's attorney.
Tom Selleck and Liberace are among other celebrities who have cited defamation per se for being called gay. But such lawsuits are not just the domain of the rich and famous.
When Daniel L'Hommedieu of Holly Springs, N.C., put his name into an Internet search engine, he found a Web site called DanLHommedieuLovesMen.com that appeared to claim he is gay. The site listed L'Hommedieu's former address and phone number and barely attempted to hide his true identity. He found out who started the site and is suing the creator for defamation and libel.
As long as courts find that a community for the most part considers being gay as immoral or a handicap, defamation per se suits will remain viable, experts say. But if the Supreme Court makes sodomy legal, it will be another step toward making calling someone homosexual less of a legal issue.
There are historical precedents, after all. At one time, it was considered defamation per se to be falsely accused of being black. More recently, women had a basis for defamation per se if they were wrongly called victims of rape, because society often blamed women for participating in the crime.
Polls Split on Gay Morality, Sodomy
Is American society ready to move past gay defamation?
So far, the American public splits on the question of whether being gay is immoral and whether homosexual relations should be outlawed, according to recent public opinion polls. Fewer and fewer states have sodomy laws, as well.
In the mid-'80s, half the states regulated sodomy. Now, the number has dwindled to 13. Kansas, Oklahoma and Missouri have same-sex sodomy laws like Texas. Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah, and Virginia outlaw sodomy for all, regardless of sexual orientation.
Rob DeKoven, a professor at California Western School of Law in San Diego, says it's already time for the courts to find that referring to one's lawful sexual orientation, even if the statement is untrue, is not defamatory per se anymore due to changing morals.
Instead, he says, plaintiffs could make an accusation of homosexuality libel or slander per quod, meaning that individuals would have to prove the statement was particularly damaging to him or her.
"In the case of Tom Cruise, for example, he could argue that, being accused of having had a gay relationship while married, would implicate his marriage vows and the statement really accuses him of adultery, which may or may not be libel per se," DeKoven said.
Potential consequences of the court's Lawrence decision could be sweeping, affecting how the court scrutinizes laws that treat people differently according to sexual orientation and outright legalizing sodomy in every state once and for all.
Whether being called gay is automatic grounds for a lawsuit is one of the more minor potential side effects of a ruling in Lawrence but one that could have historic legal impact.
"Times are changing generally and the social situation for gays and lesbians is improving, maybe slowly, but a favorable decision [by the Supreme Court] will certainly be part of the improvement," said Ed Stein, who teaches sexual orientation, gender and the law at Benjamin N. Cardozo School of Law in New York.
"Along the way it would probably make it less of a bad thing to be called gay or lesbian and thus weaken the argument of slander per se over time."