Gay Rights No Easy Sell in Courts ; despite High-Profile Victories, Gay-Rights Activists Have Lost Most Recent Cases
Warren Richey writer of The Christian Science Monitor, The Christian Science Monitor
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. …