Hard to believe it today, but until 1984, a man could be arrested for asking another man to have sex with him. That intrusive law wrecked the lives of hundreds of men in New York State before it was finally abolished, thanks to the courage of two Buffalonians.
It all started on a hot, humid August night two years earlier, on North Street near Irving Place, just across from the Lenox Hotel. At the time, that block was a popular cruising spot for gay men, back in the day when men had to hang out in certain public and semipublic places, designated by custom, to hook up with other men. At around 3 a.m. Bobby Uplinger — 30 years old, out and proud — strolled by in a white tank top, looking for companionship after a night out at a nearby Main Street bar. He spotted someone he found attractive and struck up a conversation. They talked for a few minutes, even after a police cruiser rolled by and the cop inside told everyone to move on. Historian Jeffry Iovannone tells what happened next:
As Uplinger and the young man walked toward the corner of North and Irving Street, Uplinger asked if he wanted to go back to his apartment. “Why?” the young man asked, to which Uplinger countered, “Well, do you just want to come over?” “No, I’m scared of the police. I’m going to leave,” the young man responded. Uplinger, growing impatient, made the following offer: “If you drive me over to my place..."
What he offered was an intimate encounter.
These were the exact words the young man wanted to hear—but not because he was hoping to make a sexual connection with Uplinger. The young man was, in fact, Buffalo Police Department undercover vice officer Steven Nicosia. Nicosia was part of an undercover campaign to scare gay men away from cruising in the residential areas of Allentown.
In those days, Buffalo cops, like police departments across the country, routinely entrapped gay, lesbian, and trans people into committing “crimes” like soliciting for sex, wearing “indecent” clothing, and even dancing with someone of the same sex. The names of the offending parties were published in the papers, which was meant to compound the shame.
Uplinger was found guilty and fined $100 for the crime of “loitering in a public place for the purpose to engage in deviate sexual intercourse or other sexual behavior of a deviate nature” — but, being out and proud, he didn’t care about any potential damage to his “reputation”. Within a few days, he contacted attorney Bill Gardner, a senior partner at the prominent law firm Hodgson Russ, who was well known for defending members of the gay community against loitering and sodomy charges, pro bono. In addition to being outraged by the Buffalo police’s harassment of the gay and lesbian community, Gardner, married with children, was himself struggling to come out of the closet, in the parlance of the era.
Gardner and Uplinger fought the case all the way up to the New York Court of Appeals, the highest court in the state. They sought dismissal on the grounds that if it was legal for consenting adults to have sex in the privacy of their own home (at that point, a principle only recently enshrined in New York State law), then surely to ask someone to engage in it should be legal too. The court agreed — but the victory was short-lived. Erie County District Attorney Richard J. Arcara appealed the case to the U.S. Supreme Court.
Uplinger and Gardner had to overcome many obstacles, including harassing phone calls, threats, and complaints from Buffalo gay groups opposed to the “militancy” of the court battle. Uplinger also lost his job as a Buffalo teacher (though he later won reinstatement and full back pay). Still, in January, Gardner argued New York v. Uplinger before the Supreme Court in Washington. Finally, in May came the decision: the justices upheld the ruling by New York’s courts that people could not be prosecuted for asking others to have “deviate sex” in the privacy of their own homes.
Uplinger and Gardner had won — they’d made gay sexuality in New York State legal. Nevertheless, it would not be until 2003 that SCOTUS extended the same principle throughout the land... highlighting just how much it took for those two gutsy Buffalonians to stand up so proudly for their rights.
Cast (in order of appearance):
Bill Gardner: Anthony Chase
Bobby Uplinger: Michael Blasdell
Officer Steven Nicosia: Anthony Alcocer
Narrator: Susan Banks
Sound recording: Brandon Nightingale
Sound editing: Micheal Peters Piano theme: Excerpt from “Buffalo City Guards Parade March,” by Francis Johnson (1839)
Performed by Aaron Dai
Produced by the Niagara Frontier Heritage Project
Associate producer: Karl-Eric Reif
Webpage written by Jeff Z. Klein (Niagara Frontier Heritage Project)
Special thanks to:
Kathryn Larsen, vice president, content distribution, Buffalo Toronto Public Media
S.J. Velasquez, director of audio strategy, Buffalo Toronto Public Media
Jerry Urban, senior radio broadcast engineer