Courting Discrimination: The 2003 Supreme Court Ruling That Demolished Sodomy Laws Has Yet to Provide a Boost for Gay Rights at the Local Level

Article excerpt

Last summer, gay rights advocates hailed the historic U.S. Supreme Court decision that struck down remaining sodomy laws across the country. Jubilant speakers at rallies everywhere predicted that the Lawrence v. Texas decision would drastically influence gay and lesbian equal rights cases for the better. "Let a slate of recent high-profile court cases has shown that the aftermath of Lawrence hasn't been as revolutionary as many assumed.

In January the 11th U.S. circuit court of appeals upheld a lower court's ruling that gay men and lesbians in Florida could not adopt children. The court ignored Lawrence, writing that "any argument that the Florida legislature was misguided in its decision is one of legislative policy, not constitutional law." The decision rebuffed three foster families, including partners Steve Lofton and Roger Croteau, whose case was made famous by Rosie O'Donnell. The men had raised their son for most of his life.

The American Civil Liberties Union tins asked the 11th U.S. circuit court of appeals in Atlanta to reconsider the ruling. "The appeals court completely misunderstood the Supreme Court's ruling in Lawrence v. Texas, which says that states can no longer make up reasons to discriminate against gay people," says Matt Coles, director of the ACLU's Lesbian and Gay Rights Projects. "Sexual orientation has nothing to do with a person's ability to parent, and this law has nothing to do with child welfare. For the sake of the thousands of children in Florida iii need of a home, we hope the court will reconsider."

In Kansas a state appeals court ruled 2-1 that there was no problem with Matthew R. Limon serving 17 years in prison for having consensual oral sex with a male minor when Limon was 18. If the minor had been a female, he would have received a much lighter sentence [see box, page 27]. The decision was specifically disappointing considering that the U.S. Supreme Court had specifically instructed the Kansas court to reexamine tire case in light of the Lawrence decision. However, the court said the state had every right to "encourage and preserve the traditional mores of society."

Meanwhile, state legislatures from Utah to Maryland have been stumbling over themselves to change their constitutions to ban same-sex marriages. Virginia is still hauling men into court under the pretense of its defunct sodomy laws.

William Eskridge Jr., a Yale University law professor notes that there may have been some irrational exuberance around the ruling. "I think pro-gay people generally were more optimistic about how Lawrence would be applied by the lower courts," he says. "What we're going to see is a more conservative application of Lawrence in the Southern states and in certain parts of the Midwest and West than you are going to find in the Northeast states, the Great Lakes states, and the West Coast. The Limon decision in Kansas and the Lofton decision in the 11th Circuit are perfect examples of that."

The unique nature of the Lawrence decision itself also means that gay rights cases are still up to debate, says Coles of the ACLU, which bas been involved in both the Kansas and Florida cases.

"There's a controversy in the courts over how far it goes," he explains. "Does it just say that states can't pass criminal laws like Texas had, or does it go much farther in protecting relationships and sexuality? The rhetoric of the case--the grand things they said about relationships--certainly strongly suggests it goes much farther, but the legal analysis isn't all that clear, so it means there is a fight going on in the lower courts."

Coles stresses that neither Limon nor Lofton are necessarily over. The Limon case can be appealed to the Kansas supreme court, and Lofton could get another hearing in the federal court system. "People should certainly be distressed that two of the first few cases after Lawrence we seem to try and take it back away again," he sacs. …