Last edited: February 14, 2005

High Court Ruling Likely to Usher in New Era for Gays Decision’s Logic to Have Impact on Other Rights

San Francisco Chronicle, June 29, 2003
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By Carolyn Lochhead, Chronicle Washington Bureau

WASHINGTON—The Supreme Court has ruled that it is no longer a crime to be gay.

On its face, the court’s decision Thursday in Lawrence vs. Texas, striking down the nation’s 13 remaining sodomy statutes and reversing its 1986 Bowers vs. Hardwick ruling in a similar sodomy case, merely decriminalizes gays and lesbians.

That this is only now affirmed in 2003 strikes some as more a reflection of the court’s backwardness than an institutional breakthrough.

“It’s somewhat embarrassing to this nation that while Canada is on the verge of recognizing same-gender marriage, our high court at the same time is deliberating over an antiquated 19th century sodomy law,” said California Assemblyman Mark Leno, a gay Democrat from San Francisco. “I mean, we are way behind the times.”

Indeed, the ruling may not have much immediate practical effect for citizens of San Francisco, a place that many religious conservatives already view as a modern-day Sodom.

Yet few on either side of what Justice Antonin Scalia in his bitter dissent called the “culture war” doubt that striking down sodomy laws is nonetheless a watershed in the gay civil rights movement—one that will bring to a boil the simmering debate over homosexuality in American culture and the nation’s political and legal institutions.

Ultimately, both sides believe, the ruling corrodes the rational basis for all disparate treatment of gays and lesbians, including marriage.

In the 13 states where sodomy laws have been annulled, especially the four, including Texas, where the bans applied only to gay people, the lifting of criminalization has an immediate and practical impact.

“The laws were seldom enforced but they stigmatized,” said Charles Francis, founder and co-chairman of the Republican Unity Coalition, a group aiming to improve acceptance for gays within the GOP.

“I grew up in Texas in the ‘60s, and was a student council president and Eagle Scout, and at the same time knew I was fundamentally a criminal for being gay,” Francis said. “That’s a huge weight that’s been removed from every single person that’s lived under those kinds of laws.

“People in San Francisco, they may not know what it feels like to be from the South where a sodomy law criminalizes your life.”

For gay men and lesbians across the country, the court’s rejection of its 1986 Bowers decision also has practical significance, by putting gays on equal footing in substantive legal matters of employment, adoption, child custody and other matters. The Bowers decision had routinely been cited in those kinds of cases to deny homosexuals the same rights taken for granted by heterosexuals.

“The next barrier to fall will be employment discrimination,” said Daniel Zingale, Cabinet secretary to Gov. Gray Davis and a former gay activist.

It remains legal in most of the country to fire employees for being gay; only 14 states include sexual orientation in employment discrimination law. Federal law also does not cover homosexuality. “I think that is not long for this land in light of this ruling,” Zingale said.

And for all gay Americans, the quiet but vaulting rhetoric of Justice Anthony Kennedy’s opinion for the majority goes well beyond mere decriminalization of gay life. While the ruling dealt only with sodomy and the right of gays and lesbians to privacy and freedom from arrest in their relationships, its language conveyed a much more sweeping recognition of what Kennedy, using the words of the nation’s founding, called the liberty of gays and lesbians.

The government may not legislate its “moral code” on a minority, reducing gay relationships to sex acts “demeans” them as it would for married people, and homosexuals have a right to “retain their dignity as free persons” under the Constitution, Kennedy wrote.

And so the decision stamped, for the first time in American history, the imprimatur of the Supreme Court on gay equality. Ruth Harlow, who represented the plaintiffs for Lambda Legal, called the ruling “transformative.”

“Without question, this is the most significant case to be decided by the Supreme Court as it relates to equal rights for gay people in our history,” said David Smith, spokesman for the Human Rights Campaign, the nation’s largest gay lobby. “To establish a fundamental right to privacy for gay and lesbian Americans is a giant step forward, and contained in there are links to marriage, child rearing . . . it’s just not too far of a leap.”

Still, the ruling stayed within the bounds of the case at hand, and in doing so left ample room to restrict gays from the right to marry.

“For all that the court talked about respect for gay people, which is useful as a symbolic act, it is still applying the lowest level of scrutiny possible,” said Erik Jaffe, who wrote a friend of the court brief for the Republican Unity Coalition.

Texas did not attempt to make “even a remotely plausible policy reason” for its sodomy law other than citing morality, Jaffe said, whereas it certainly will be argued that marriage laws have a greater public policy justification.

“That’s what leaves the door open to (a decision on same-sex) marriage coming out the other way,” Jaffe said. A court could argue, “maybe current marriage laws do discriminate, but here’s a reason that passes the laugh test, and that’s enough.”

Scalia, however, argued cogently that the Lawrence ruling knocks the legs out from under any form of discrimination against homosexuals, including marriage laws.

“What a massive disruption of the current social order, therefore, the overruling of Bowers entails,” Scalia wrote. Laws limiting marriage to heterosexuals, as well as condemning everything from bigamy to prostitution to adult incest, “every single one of these laws is called into question by today’s decision,” Scalia wrote.

In 1954, the court ruled in Brown vs. Board of Education that racial segregation in the nation’s public schools was no longer constitutional, overturning its “separate but equal” doctrine established in its infamous 1896 Plessy vs. Ferguson ruling.

The Supreme Court took nearly seven decades to overturn Plessy. It waited a comparatively short 17 years to overturn Bowers. Justice Sandra Day O’Connor, who voted with the majority in Bowers, joined the majority in overturning the sodomy statutes on equal protection grounds, but did not join in overturning the earlier Bowers decision.

Yet Kennedy emphatically and significantly took on the Bowers case, saying it “was not correct when it was decided, is not correct today, and is overruled,” in doing so broadening the import of the decision and leaving its stature in the history of gay civil rights unquestioned.

Patrick Guerriero, executive director of the Log Cabin Republicans, a gay GOP group, noted that the impact is magnified by the conservative Republican makeup of the court itself, including Kennedy, a 1988 appointee of President Ronald Reagan. Even Justice Clarence Thomas in his dissent called the Texas law “silly,” voting to uphold it on grounds that it is the role of legislatures and not courts to resolve such issues.

“One of the most striking elements of this is that a Supreme Court made up of mostly Republican-appointed justices with a deeply conservative reputation authored the most significant case in gay and lesbian history,” Guerriero said.

“If the conservative and Republican-dominated Supreme Court recognizes gays and lesbians as valued and equal parts of the American family, it makes it much more difficult for the nation’s leaders and political candidates to move even further to the right of the court,” he said.

Guerriero predicted a “definite and immediate backlash from the radical right, and a new political calculation that will take place as we head into the 2004 elections. You can stand with the sentiments of (Pennsylvania Republican) Sen. Rick Santorum and the Family Research Council, or with the conservative Supreme Court’s statement of fairness. It’s a very interesting moment.”

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