Last edited: April 18, 2005

Texas Case Fuels Momentum for Gay Marriage

The Detroit News, April 11, 2005

By Deb Price

Sometimes, inside families and other close-knit groups, fascinating discussions take place below the radar screens of most outside observers. And that was certainly true back in the spring of 2003 when three U.S. Supreme Court justices sparred over gay marriage.

In its blockbuster Lawrence v. Texas ruling, the court declared gay Americans have a constitutionally protected right to sexual intimacy, just as heterosexuals do. The court spoke eloquently of the “dignity ... of homosexual persons ... entitled to respect for their private lives.”

Lawrence’s impact has been huge culturally and politically. And, legally, at a minimum, states like Texas can no longer criminalize gay sex, meaning they’ve lost the biggest club they’d used to hurt gay folks in everything from child custody disputes to job discrimination. (See:

But Justices Anthony Kennedy, Sandra Day O’Connor and Antonin Scalia also addressed the logical next question: Well, if gay Americans are next in line for protection under privacy cases dating back to 1965, when the court declared that married couples have a right to contraceptives, don’t gay people also have a constitutionally protected right to marry?

As we near the May 17 anniversary of the first state’s issuing marriage licenses to gay couples, it’s heartening to report that judges in Massachusetts, New York and Washington (twice) have favorably pointed to Lawrence in rulings saying marriage discrimination violates their state constitutions. (The New York and Washington cases are being appealed.)

Monumental Supreme Court rulings take years—often decades—to be fully felt. But less than two years after Lawrence, we’ve also seen a series of state, federal and military courts cite it in nonmarriage decisions helpful to gay Americans:

• The Idaho Supreme Court on Sept. 21 said gay parents must be treated equally in custody disputes with heterosexual ex-spouses.

• The Ninth Circuit Court of Appeals on March 7 ruled that a Lebanese gay man is eligible to apply for U.S. asylum because he fears being tortured and killed if forced to return home.

• In U.S. v. Marcum, the U.S. Court of Appeals for the Armed Forces on Aug. 23 signaled it will decide on a case-by-case basis whether certain sexual conduct banned by the military is actually protected under Lawrence.

While the U.S. Supreme Court is years from weighing in directly on the marriage fight, we can peek at the future by looking back at the under-the-radar scuffle among Kennedy, O’Connor and Scalia.

Here’s what each said:

Kennedy, writing for the majority: “(The present case) does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Translation: Let’s talk about marriage later.

O’Connor, writing separately: “Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage.” Translation: I’m still open to—perhaps favor—arguments to keep gay Americans from marrying or serving openly in the military.

Scalia, in dissent: “Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.... (After this decision) what justification could there possibly be for denying the benefits of marriage to homosexual couples.... This case ‘does not involve’ the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.” Translation: Case closed. Gay marriage is around the corner—and don’t blame me.

In earlier civil rights struggles, marriage became the final battleground in the quest for true equality. And, just as was the case with African-Americans and women, those of us who’re gay eventually will find the nation’s highest court on our side.

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