The New York Times - December 15, 1985
Mary Connelly

The issues come more clearly into focus where AIDS (or acquired immune deficiency syndrome) is concerned, if only because of the immediacy and gravity of an epidemic that has killed half its victims so far.

On Oct. 25, the New York State Public Health Council adopted regulations authorizing cities to close bathhouses, theaters and other places that condone "high-risk sexual activities." The State Health Commissioner, Dr. David Axelrod, said inspections could be extended "if necessary" to hotels.

The practices the regulations are designed to restrict are most common among homosexual men. On Nov. 7 the city closed the Mine Shaft, a Greenwich Village bar frequented by homosexual men. On Dec. 6 the city closed the New St. Marks Baths in the East Village, a similar gathering place.

For the city's heterosexual majority, the rights issue may have been blurred by images of unfamiliar practices that many find distasteful. Homosexuals fear the consequences of that attitude.

Mary Connelly, an editor of The Week in Review, discussed the conflicting points of view last week with Norman Siegel, the executive director of the New York Civil Liberties Union, and Doron Gopstein, the city's Chief Assistant Corporation Counsel. Excerpts from their comments follow.

Traditionally, government has given public health officers great powers, one could say enormous powers, to deal with public health situations. Obviously the greater the powers, the more carefully they have to be used.

I think from a government point of view it's absolutely necessary to always be aware of the competing rights and interests that you're dealing with. No one can hope to have the perfect answer on this.

There are rights, civil liberty interests that are at work. There are rights of individuals, and there are rights of privacy that may come into play in certain situations. There are also, of course, the rights of the public to be defended from public-health risks. I think here in New York City we have tried scrupulously to take all these interests into account.

The purpose of all this is not to close down establishments. It's to curtail an activity. If the city inspectors go into a particular place and find no instances of high-risk sexual activity, I don't consider that a loss for the city or a loss for law enforcement effort; I consider that a triumph for public health.

I believe very strongly that it's simply not government's business to be engaging in the regulation of sexual practices and sexual preferences. It's not an area where we want to sort of slide into an indirect kind of regulation. And it's clear that it's not an issue of whether it's homosexual or heterosexual; high-risk sexual activity as defined can occur in both groups.

A remark was made that maybe the definition of establishment is broad enough to cover hotels. I think Mayor Koch responded to that by saying the city is not just about to barge into hotel rooms looking for high-risk sexual activity. I think what we're doing right now, we're focusing on the kinds of places where this kind of activity is likely to take place.

Certain other types of establishments seem to permit and profit from multiple, anonymous sexual activities, and it appears that it is that kind of establishment where large-scale, high-risk sexual activity is more likely to occur.

St. Marks claims to have engaged in many educational and preventive efforts. Unfortunately, what the city inspectors found - 49 instances of high-risk sex, involving over 80 people, all in public view - suggests such steps have been ineffective.

Occasionally there have been fears expressed by gay groups that the definition of high-risk sexual activities in the state regulations may somehow lead the way to reintroducing the sodomy statutes which, in New York State at least, and some other states, have been ruled to be unconstitutional.

It's very important to note that the New York State Court of Appeals decision made it very clear that it was the application of the sodomy statute in a noncommercial private setting that was unconstitutional.

The bathhouses charge a fee and you, I, anybody else could walk in there. It's not your home, the place where society traditionally expects a high degree of privacy. If you look at the New St. Marks violations, everything that was described there was seen in plain, open view. Nobody barged into a house or car or room or cubicle.

Obviously we would not have undertaken the steps we have taken unless we had felt that they did pass the general constitutional standards.

I think it's not an unhealthy thing to have litigation on these matters. If what we're doing holds up, and we think it will, fine; if it does not, and should be modified in any way, that's a very good public result as well. And I think we're engaged in that process.

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