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A Tale of Two Kisses: Gay Couples in Utah, Texas Tangle with Police Over Kissing

By L. K. Regan

In many American cities, July is gay pride, with parades, floats, celebrations, and coming out events. In two American cities this month, however, gay couples have been targeted by security services simply for exchanging a kiss. Both cases raise questions about the limits of the law as well as police jurisdiction and conduct. So we want to know: when is it safe to kiss in public?

First to Salt Lake City, Utah where last weekend, Matt Aune and Derek Jones exchanged a hug and kiss on the cheek while walking home from a concert. Unfortunately, they happened to be in the plaza in front of the Mormon Temple at the time, and so security guards approached them and accused them of “inappropriate behavior”. A church spokeswoman later said that the men were “politely asked to stop engaging in inappropriate behavior—just as any other couple would have been," but Aune and Jones don’t buy it. "We asked what we were doing wrong," Aune told The Associated Press. The guards handcuffed the two men and called the police, who cited both men with misdemeanor trespassing. According to Salt Lake City Police Sgt. Robin Snyder, "It doesn't matter what they were asked to leave for. If they are asked to leave and don't they are... trespassing.”

On Sunday morning, roughly 100 protesters wearing paper hearts on their sleeves or as masks, and determined to engage in modest displays of affection, arrived at the same square to stage a kiss-in, though guards carefully kept them off of the property owned by the LDS. That property, however, is very much a publicly accessible space, and in fact used to be owned by the city, which traded it to the LDS church in 2003 in exchange for land for a community center. At that point, the LDS instituted rules for the property prohibiting such wild behavior as protesting, smoking, sunbathing and other "offensive, indecent, obscene, lewd or disorderly speech, dress or conduct," as church officials said at the time. Aune and Jones were thus in violation of more than one of these rules, since they also used profanity with the guards at some point after being confronted over the peck on the cheek. Even so, serious questions have arisen as to how such a publicly positioned space can be policed using such restricted rules.

In Texas, the legal case is more complicated, with the local law enforcement authorities, at least until very recently, apparently unaware of their own local ordinances. Late on the night of June 28th, police in El Paso, Texas were called to Chico’s Tacos to arrest two men who had shared a kiss in the restaurant. The couple were amongst a group of five men who ordered food and sat down to eat at the fast food taco chain, when a guard approached them and asked them to leave. One member of the group quoted the guard as saying that the restaurant did not allow “that faggot stuff”. The men called the police, intending to ask the local force to defend their rights, only to be told by the police, according to one member of the group, that they could be cited for "homosexual conduct"—a patent untruth. In fact, no police report was filed at all—but the question of what exactly the police know of local, state, and federal law remains open.

For example, El Paso police Detective Carlos Carrillo told the El Paso Times that criminal trespass would have been a more appropriate charge than “homosexual conduct”. “Every business has the right to refuse service,” he said. “They have the right to refuse service to whoever they don't want there. That's their prerogative." In fact, however, they have no such prerogative, and criminal trespass is no more viable a charge than the ludicrous “homosexual conduct”. The ignorance of his own officers and spokespersons drove El Paso Police Chief Greg Allen to release a statement to the press acknowledging that El Paso in fact has very clear anti-discrimination statutes on the books. “The correct local law,” Chief Allen said, “clearly states that it is within the responsibility of government, including its employees, to bring about through fair, orderly and lawful procedures, the opportunity of each person to obtain goods and services in all process of public accommodation without fear of discrimination.” And he rather embarrassingly had to promise to bring his own officers up to date on the laws of his city: “I, therefore, require that all employees of the police department maintain a level of competence that keeps them abreast of the current laws and requirements of the law enforcement profession. Failure to maintain such will result in appropriate discipline.”

More likely, however, things will remain as they have always been, where every gay person should be careful to know his rights—especially if he’s going to share a kiss in public.