Texas Case Fuels Momentum for Gay Marriage
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: supremecourtus.gov.)
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
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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