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.

Closing bathhouses is a violation of constitutional rights. It raises at least three serious constitutional issues:

First, it tends to prohibit the sexual activities of consenting adults, which is a government intrusion in violation of the patrons' fundamental right to privacy. Second, it has the effect of preventing patrons from gathering and socializing. Such association is protected under the First Amendment. The concept that the bathhouse is only a place for sexual activity is not correct.

Third, we believe the New York regulation is unconstitutional on its face in that it is both overly broad and underinclusive, and therefore violates the rights of due process and equal protection. The regulation broadly defines as dangerous all oral and anal sex without regard to other medically significant criteria affecting the relative safety of particular acts. And it fails to define vaginal sex as high-risk.

When government tries to regulate constitutionally protected activity, it must prove that the regulation is narrowly drawn and necessary to the achievement of a compelling state interest. We have concluded that closing bathhouses is ineffective and perhaps counter-productive.

To begin with, the bathhouse has a significant role in the gay community, especially in view of the fact that there is an openly hostile, at times aggressively hostile, environment. Patrons have explained to us that it's safer for them to have the kind of activity they have at a bathhouse. If the bathhouses are closed, they'll go underground; they'll go to less safe places.

Also, if we close the bathhouses down, we lose a wonderful opportunity to educate. The real solution is education. People transmit AIDS, not places, and New St. Marks had been effectively educating people. In effect, bathhouses have a captive audience: People go there, they have connections there and when they're there you have a chance to educate.

Basically what's happening, it appears to me, is that politicians feel that there is a need to appear in the public eye as if they are doing something, that they're acting tough. The city didn't even take the alternative of trying to work out certain kinds of least-drastic alternatives. They just swooped down and closed New St. Marks.

If the city or state really were concerned about being effective, we would see TV and radio spots, ads on trains and buses. There could be meetings through block and tenants' associations and in mid-Manhattan buildings where a lot of people work, at lunchtime or after work, where the city and the state could send people in to do workshops.

And who knows what comes next? The specter of seeing sex cops, sex patrols, roaming the city and knocking on people's doors in the middle of the night while people are conducting sexual activity in a hotel room is something that troubles us tremendously. It's extremely important for people to understand that the closing of a bathhouse is part and parcel of government cracking down on sexual freedom.

What gets me angry is that rather than putting all their focus and resources into education, the city and state are diverting the public attention. People out there in the public see this kind of activity and they say, "Well, they closed the bathhouse, so I guess that's the end of the problem of AIDS." And that's frightening.

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