Gay Rights Go to Court: Sodomy Laws, Same-Sex Marriage, and the Future of Homosexual Rights

Article excerpt

THE U.S. SUPREME Court is set to rule, for the second time in less than 20 years, on the constitutionality of state laws prohibiting consensual sodomy. At the same time, the Supreme Judicial Court in Massachusetts is weighing a lawsuit that seeks to legalize same-sex marriages, claiming that marriage to the partner of one's choice is "protected by the liberty and due process clauses of the Massachusetts Constitution. "The two cases and the political response to them illustrate both the progress our culture has made toward equality for gay men and women and the hurdles that remain.

The striking thing about the Supreme Court case Lawrence v. Texas is the very thought that in the United States in the 21st century, you can get arrested for having sex in your bedroom with a consenting adult. The two men challenging the law, John Lawrence and Tyron Gardner, were briefly jailed and fined $200 each after being caught flagrante delicto in Lawrence's unlocked apartment, which the police entered on a neighbor's false tip about an intruder.

The state's position, in a nutshell, is that it has the right to ban homosexual acts because it considers them immoral. Significantly, the Bush Justice Department has not taken a stand on Lawrence v. Texas. Several socially conservative groups, however, have weighed in to affirm that the government does indeed belong in our bedrooms. A joint brief from the Family Research Council and Focus on the Family states that the Texas law is "a reasonable means of promoting and protecting marriage--the union of a man and a woman."

Which brings us to the far more complex issue of same-sex marriage, raised in a Massachusetts lawsuit by seven gay and lesbian couples seeking the right to marry. How the court will rule is anybody's guess, but in this instance the decision is unlikely to settle the issue. State lawmakers are already gearing up to pass a constitutional amendment stating that "only the union of one man and one woman shall be valid or recognized as a marriage in Massachusetts," which would supercede a court ruling for the plaintiffs. If it passes, it would make Massachusetts the 37th state to outlaw same-sex marriage.

Most secular arguments against gay marriage have been masterfully demolished by gay writers such as Andrew Sullivan and Jonathan Ruch. The most prominent of these arguments--that marriage is defined by its procreative nature--is belied by the fact that heterosexual spouses who are infertile or childless by choice have the same legal rights as married couples with children.

In a 2002 debate with Sullivan in National

Review, Hudson Institute fellow Stanley Kurtz argued that marriage is based on sexual difference and complementary gender roles, and will thus be irreparably damaged by the legalization of same-sex unions. Kurtz's view of sexual complementarity is stock conservative dogma: Men want sex, women want love and family, and marriage is a bargain in which men trade commitment and financial support for sex and women domesticate men.

Yet this 1950s view of marriage is no longer incorporated into American family law, which in most states is now formally gender-neutral. In practice, courts still tend to favor women as custodial parents and to stress men's financial obligations, but for better or worse, this tendency is unlikely to be affected by the legalization of same-sex marriage. While Kurtz argues that growing acceptance of gay rights is closely related to "no-strings heterosexual hookups and 50 percent divorce rates," public opinion trends suggest otherwise. Anti-gay attitudes remained largely unchanged throughout the 1970s and '80s, with about three-quarters of Americans agreeing that sexual relations between adults of the same sex are "always wrong." That figure began to decline in the 1990s--the same period when attitudes toward divorce and casual sex grew more conservative.

Another common argument is that redefining marriage is a slippery slope: Legalize same-sex unions, and who's to say that polygamy isn't next? …