Fifth Freedom, 1983-03-01

              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 of Appeals, which struck down one of the state's loitering laws, culminated many months of legal struggle that began in Buffalo, New York. In August 1981 Robert Uplinger was arrested on Buffalo's North Street for soliciting an undercover male police officer. He was convicted by City Judge Timothy Drury for violating that section of the loitering law which dealt with using a public place for soliciting another person to engage in a "deviate" sexual act. This conviction was initially upheld by Erie County Judge Joseph P. McCarthy. Represented by William Gardner, a Buffalo lawyer associated with the firm of Hodgson, Russ, Andrews and Goodyear, Uplinger carried his appeal to New York State's highest court. The loitering law that was just struck down existed on the books as a companion statute to the state's consensual sodomy law, which was declared unconstitutional in December 198 C. The Court of Appeals ruling stated: "We held in People vs. Onofre that the state may not constitutionally prohibit sexual behavior conducted in private between consenting adults. The object of the loitering statute is to punish conduct anticipatory to the act of consensual sodomy. Inasmuch as the conduct ultimately contemplated by the loitering statute may not be deemed criminal, we perceive no basis upon which the state may continue to punish loitering for that purpose." However, the Court indicated that its decision was not directed toward instances in which people are being offensive or annoying to others. They also noted that where money changes hands for the purpose of sexual acts, such activity is still illegal in New York State. Judge Matthew Jasen of Orchard Park was the only dissenter in the six to one vote. He wrote that "No person should have the right to create a public nuisance or disturb others on the street so that he may later engage in private sexual conduct." He argued that the Legislature had acted appropriately in terms of the Constitution. In the two-page majority decision its author wrote: "We do not hold that the Legislature cannot enact a law prohibiting a person from accosting another in an offensive manner or in an inappropriate place even if the underlying purpose is not a violation of law. However, it is apparent from the wording of this statute that it was aimed at proscribing overtures, not necessarily bothersome to the recipient, leading to what was at the time the law was enacted, an illegal act." BUFFALO POLICE REACTION The February 24 "final" edition of the BUFFALO NEWS carried two stories about the ruling. Buried on page 10 of the Sport's section, the main article (dateline Albany) detailed the case and the Court of Appeals decision in five columns, the full width of the page. The second article, written by a local reporter, was headlined, "Court Decision on Loitering Law Upsets Buffalo Police Officers." The local story quoted Buffalo Police Commissioner James B. Cunningham and personnel from the Bureau of Vice Investigating. Their comments were stongly critical of the ruling, expressing their frustration at contemporary courts of law and their interpretations and application of the United States Constitution. Responses to this historic court decision and to the reactions of Buffalo officials were quickly set in motion by Mattachine's Legal Committee, this newspaper's staff and other friends and supporters of Mattachine. One of the actions was an attempt to set up interviews with the three local "parties" — Uplinger, Gardner and Cunningham. Questions asked of them by this reporter and their answers comprise the rest of this feature. FIFTH FREEDCM INTERVIEWS ROBERT UPLINGER Qj_ "How do you feel now that a decision has been rendered by the Court, Bob?" A: "I'm happy that it's all worked out. But it's not enough. If gays don't do anything after this case, then forget it. It didn't mean a thing! It would be a shame if gays didn't get involved after they are aware of Cunningham's response that appeared in the paper. The gay community has a real responsibility and you (Uplinger pointing his finger at the reporter) as part of one of the gay organizations in Tuffalo have got to get out there and be involved. Q: "How has this whole affair changed your life?" A: "I found that my friends were supportive, and that included my straight friends at work. Family was also supportive when I was able to talk about the circumstances of the case with them. I know that we, as gays, belong. We are as much a part of this community as anyone else." Q: "Why did you choose to fight the system and 1 one of its existing laws?" A: "The whole thing gan one night when I was walking in my own neighborhood, a neighborhood I have chosen to live in because of its reputatior of being open and understanding to residents who happen to be gay. After some fifteen or twenty minutes of conversation with this guy I asked him over to my apartment. That was after he had said "No" to 1  my direct question of whether he was a cop. He arrested mc on the spot. I have never said that I did not make the offer to the arresting officer. My contention was that I had the right to do what I did in talking to him on the street, and inviting him back to my place for the purpose of enjoying sex with each other. At the time of the City Court hearing, the situation was really botched up when a city attorney did not inform one of his witnesses that the issue was related to homosexuality. Also, there was not one gay person who was asked to testify at that time. I was convinced that I was on the right track to fight back. Through all of this I have come to grips with my being an American. As one who pays nearly 40% of his income in taxes, I realized that I am entitled to everything the United States has to offer. There is a system to work through, and as a citizen and taxpayer I am entitled to protection from an unfair law." Cars are still ticketed... Are gays now safe from arrest for meeting on the streets? ] (continued page 12) FIFTH FREEDCM SPECIAL REPORT, pages 7-10 "LIVING THE GAY LIFE STYLE... ...STAYING OUT OF JAIL"