Sex and Gender Issues Roil US Society - and High Court by End of June, Justices Will Decide Key Cases on Harassment, Pornography, and Pedophiles

Article excerpt

Some 30 years after the "sexual revolution" and the advent of the women's movement, issues that used to be neglected or only whispered about are increasingly demanding the attention of the nation's most staid institution - the United States Supreme Court.

In greater volume and variety, cases related to gender, sexual identity, and relations between the sexes are reaching the high court. Their prevalence on the docket during the past two years underscores how America's social and political waters are still roiled by issues of sex and gender.

But the cases also show how courts and judges, from the lowest to the highest, are often perplexed over how to weigh expanding claims of freedom with strong moral claims. "The court tends to be some handful of years behind society, and now it is catching up," says Richard Paccele of the University of Missouri in St. Louis, a Supreme Court analyst. "Traditionally, the court would stay away from such cases, but state legislatures have given it no choice." Already this year, the high court has ruled in cases on abortion clinics, "deadbeat" parents, and standards for prosecuting sexual-harassment charges. It also left intact a lower-court ruling that requires Brown University in Rhode Island, and now universities across the US, to create equal opportunity for men and women athletes. (For pending cases, see story at right.) Last year, sex and gender were at the heart of the two most important decisions of the term. In a historic Colorado case, the justices ruled that gay men and women could not be denied participation in state and local politics on the basis of their homosexuality. (Colorado voters in a 1992 referendum had blocked gay political efforts.) The court next struck down a 157-year-old Virginia tradition by ruling that women could not be excluded from the state's prestigious all-male Virginia Military Institute. Today, moreover, authors of law school textbooks are struggling to keep track of a new set of sex and gender issues, such as "same sex" marriages. A court in Hawaii ruled that such marriages are legal, and the case is pending before the Hawaii Supreme Court - a likely stop-off before reaching the US Supreme Court. "Sexual orientation is a developing area of the law," says Lee Epstein of Washington University in St. Louis, co-author of "Constitutional Law for a Changing America." "You look at the Ellen DeGeneres issue on TV. It has become a mainstream question, and the Supreme Court's docket is often a microcosm of the mainstream issues important to the public." The makeup of the court itself has a gender diversity thought impossible 30 years ago. Two of the nine justices are women. Gender and behavior became a national drama, moreover, in the 1991 Senate confirmation hearing of Justice Clarence Thomas, who was accused of unwanted sexual advances by a former federal employee, Anita Hill, who worked for Mr. Thomas at the Equal Employment Opportunity Commission during the Reagan administration. WHETHER gender on the bench matters was illustrated early this term in the case of an indigent mother whose daughter was adopted by the father's new wife. …