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Policy, Ritual, Purity: Gays and Mandatory AIDS Testing

Published online by Cambridge University Press:  28 April 2021

Richard D. Mohr
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Extract

for Robert W. Switzer

“[T]here is not a good word to be said for anybody's behavior in this whole mess.”

—Larry Kramer, The Normal Heart

Well after Brown v. the Board of Education, Jackson, Mississippi, maintained racially segregated public swimming pools, claiming that only through segregation could violence and social chaos be avoided there. The federal courts saw through this stratagem, noting that it was a variant of the heckler's veto thinly masking racial animus. But did Jackson integrate its pools? No. The city council voted instead to close them all. This time out, the courts were not so wise.

In 1971, the Supreme Court upheld the constitutionality of the pool closings. The Court was snookered by the surface similarity of the policy's treatment of blacks and whites—neither could, after all, use the swimming pools. The practice appeared to treat similar cases similarly. And indeed the pool-closing statute did not refer in any way to blacks.

Type
AIDS: Testing
Information
Law, Medicine and Healthcare , Volume 15 , Issue 4 , Winter 1987 , pp. 178 - 185
Copyright
Copyright © American Society of Law, Medicine and Ethics 1987

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References

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.Google Scholar
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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.Google Scholar
The Advocate (Los Angeles), July 7, 1987, no. 476: 11.Google Scholar
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AIDS test ordered for U.S. prisoners and immigration, New York Times, June 9, 1987: 1.Google Scholar
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For discussion of the social inefficiency and immorality of mandatory marital, military, and prison testing, see Mohr, , Gays/justice, supra note 1, chapter 10.Google Scholar
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United States v. Salerno, 107 S. Ct. 2095 (1987).Google Scholar
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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.Google Scholar
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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.Google Scholar
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