Last June, the US Supreme Court gave a major boost to gay rights,
overturning a 17-year legal precedent that had allowed states to
criminalize private homosexual conduct.
Now, lower court judges are getting down to the important work of
applying the high court's decision to a crop of new cases.
Gay-rights activists were hopeful that the Lawrence v. Texas
decision would mark a turning point in the fight to end what they
see as the second-class status of homosexuals in America. But at
least so far, the record shows otherwise. Of five important gay-
rights cases decided since the Lawrence ruling, gay-rights activists
have lost all but one.
The outcome is evidence of an ongoing debate in courtrooms and
legislative assembly halls across the country. It is a debate
reflecting a fundamental disagreement within the US Supreme Court
itself over the proper role of sexual morality in the law.
Should the law impose majority notions of right and wrong, or
must laws be based on more neutral ground, embracing principles that
facilitate individual liberty and equality?
The issue was thrust center stage last June in the Lawrence
decision, an opinion that recognized for the first time that
consenting adults have a constitutional right to engage privately in
homosexual conduct without government interference. In reaching that
decision, the majority justices overturned a key legal precedent
that had held that states were justified in criminalizing homosexual
conduct because it violated the shared moral values of society.
"The issue is whether the majority may use the power of the state
to enforce these views [of morality] on the whole society through
operation of the criminal law," wrote Justice Anthony Kennedy in the
majority opinion in Lawrence. "Our obligation is to define liberty
for all, not to mandate our own moral code."
Not so fast, countered Justice Antonin Scalia in a dissenting
opinion. "The law, it is said, is constantly based on notions of
morality, and if all laws representing essentially moral choices are
to be invalidated ... the courts will be very busy indeed," he
warned, quoting from the now overturned precedent.
Thus was the stage set for the current showdown over same-sex
marriage and gay and lesbian civil rights. If morality is no longer
an acceptable justification for state laws and regulations that
treat homosexuals differently from heterosexuals, a long list of
laws suddenly look constitutionally suspect.
Justice Scalia told his fellow justices they had just opened
Pandora's box. Not only same-sex marriage and the ban on gays in the
military, but laws against bigamy, adult incest, prostitution,
adultery, bestiality, and obscenity are all based on moral choices,
he said, and all are now open to challenge on constitutional
grounds. "This effectively decrees the end of all morals
legislation," Scalia declared.
But eight months after Lawrence v. Texas shocked conservatives
and drew cheers from gay-rights supporters, Lawrence is emerging as
a far less revolutionary legal precedent than first advertised by
Scalia. Lower courts have issued five rulings since Lawrence, but
only one was a victory for gay rights. That victory - requiring
recognition of same-sex marriages in Massachusetts - is based on a
broad reading of the state constitution rather than any newly
recognized federal rights stemming from Lawrence.
While the Massachusetts case is hugely important to the gay-
rights movement, elsewhere in the nation, other judges who have been
asked to apply - and expand upon - the Lawrence precedent have been
anything but friendly to gay rights. …