High Court Look at Gay Rights Likely
February 9, 2004
By Tony Mauro, Legal Times
The Massachusetts Supreme Judicial Court’s Feb. 4
reaffirmation of its ruling in favor of same-sex marriage touched off a new
wave of celebration among civil rights advocates that began last June with the
U.S. Supreme Court’s gay rights decision in Lawrence v. Texas. But in spite
of the Massachusetts ruling, it is becoming increasingly clear to advocates
and critics alike that Lawrence has not launched a straight-line march toward
expansion of gay rights through litigation.
Recent lower court decisions in cases from Kansas and
Florida that limit or criticize Lawrence are beginning to suggest a more
complicated path ahead for gay rights advocates, with detours and reversals
likely—along with victories like the one in Massachusetts. Other cases on
the horizon, involving issues like gays in the military, a ban on the sale of
sexual aids in Alabama, and even anti-polygamy laws in Utah, will also give
lower court judges a chance to put their spin on Lawrence.
Eventually, one or more of those cases will make it back
to the Supreme Court, and some predict that the justices will feel compelled
to speak again on gay rights. Depending on the Court’s composition when that
new test arrives, it could reinforce—or weaken—Lawrence.
“When you see things happening that don’t fit the
paradigm of Lawrence, you begin to wonder if things were as positive as you
thought,” says Paul Smith, the Jenner & Block partner who argued and won
the case. “But we’ll see. There are so many positive and negative things
happening. The picture changes every day. I would be surprised if the Supreme
Court doesn’t step in again to say that nondiscrimination means
But critics of Lawrence are not so sure that is what the
Court will say. “Lawrence is already on shakier ground in these earlier
stages than Roe v. Wade has ever been,” says Mathew Staver, president of
Liberty Counsel, a gay rights opponent who filed briefs in Lawrence as well as
in the Kansas and Florida cases decided in January. “A challenge to Lawrence
will be back to the Supreme Court within two years, and the outcome will
depend on who is on the Court at the time.”
Lawrence v. Texas struck down that state’s criminal
sodomy law as a due process violation that intrudes on the privacy of
homosexuals. “As the Constitution endures, persons in every generation can
invoke its principles in their own search for greater freedom,” wrote
Justice Anthony Kennedy for the 5-4 majority.
When it was handed down, gay rights advocates proclaimed
a sweeping victory that gave them the foundation for a broad assault on laws
treating homosexuals differently.
The first post-Lawrence decision that seemed to justify
that optimism came last November when the Massachusetts Supreme Judicial Court
ruled in Goodridge v. Department of Public Health that the state’s bar
against same-sex marriages could not be constitutionally justified. Lawrence
was cited repeatedly in that decision.
The Goodridge ruling gained even more potency Feb. 4 when
the same Massachusetts court, in response to a question from the state
Legislature, said that merely providing for “civil unions” for gay
couples, rather than marriage, would not cure the constitutional defect.
But in courtrooms outside Massachusetts, Lawrence has
gotten considerably less judicial respect.
The first setback came Jan. 28 when the 11th U.S. Circuit
Court of Appeals upheld Florida’s outright ban on the adoption of children
by sexually active gay men or women. The unanimous ruling in Lofton v.
Secretary of the Department of Children and Family Services said the Lawrence
ruling did not control the case because it targeted a criminal statute
involving adults—not, as in Florida, a state privilege involving both adults
But the 11th Circuit panel did not leave it there. Judge
Stanley Birch’s opinion went on to criticize Lawrence in detail: “We are
particularly hesitant to infer a new fundamental liberty interest from an
opinion whose language and reasoning are inconsistent with standard
Birch also said that Lawrence contained “virtually no
inquiry” into whether the right at issue is deeply rooted in U.S. history.
He also criticized the decision for failing to apply a “strict scrutiny”
analysis to the Texas law.
“The constitutional liberty interests on which the
Court relied were invoked not with careful description but with sweeping
generality,” the panel concluded.
Two days later, on Jan. 30, came another ruling that gave
Lawrence short shrift, this time from the Kansas Court of Appeals, an
intermediate appellate court.
The day after Lawrence was decided last June, the Supreme
Court sent back to Kansas courts the case of Limon v. Kansas with instructions
to consider it anew in light of Lawrence.
Matthew Limon had been sentenced to 17 years in prison
for having sex with a 14-year-old boy. Limon, who was 18 at the time, appealed
the sentence, noting that under the state’s “Romeo and Juliet” law, his
penalty would have been 15 times lighter if he’d had sex with a girl the
As instructed, the Kansas court took Lawrence into
account—but said it did not apply. Echoing the 11th Circuit, the Kansas
court noted that Lawrence involved adults, not minors.
“Because the present case involved a 14-year-old
developmentally disabled child, it is factually distinguishable from
Lawrence,” wrote Kansas Appeals Judge Henry Green Jr. “In addition, the
present case is legally distinguishable from Lawrence.” The judge went on to
point out that Limon had made an equal protection claim, not a due process
challenge of the kind that Lawrence endorsed.
The Kansas court also cited a paragraph in Kennedy’s
majority ruling in Lawrence that Birch had quoted as well, and which could
prove to be the mantra of judges who want to interpret the ruling narrowly:
“The present case does not involve minors. It does not involve persons who
might be injured or coerced or who are situated in relationships where consent
might not easily be refused. It does not involve public conduct or
prostitution. It does not involve whether the government must give formal
recognition to any relationship that homosexual persons seek to enter.”
These limiting sentences did not deter the Massachusetts
high court from applying Lawrence to recognition of same-sex marriage, and gay
rights advocates hope that other courts will also view Lawrence expansively.
“As with any breakthrough at the Supreme Court level,
it takes some time for lower courts to fully assess the changes in the law and
move beyond their assumptions and prejudices,” says Susan Sommer, a lawyer
with Lambda Legal. “The Massachusetts court gets it, and others will too.”
The next major appellate tests of the vitality of
Lawrence may come soon. The U.S. Court of Appeals for the Armed Forces heard
arguments last October in United States v. Marcum, which asks whether the
military’s ban on same-sex sodomy is invalid in light of Lawrence. And a
separate case before the U.S. Court of Federal Claims, Loomis v. United
States, makes a broader Lawrence-related challenge to the “don’t ask,
don’t tell” policy governing gays in the military. Plaintiff Steve Loomis
is seeking to recover pension benefits he lost when he was discharged from the
Army in 1997 for being gay.
The Utah Supreme Court heard arguments last December in
State v. Green, which included a Lawrence-related challenge to that state’s
laws against polygamy. Lawyers for polygamist Tom Green asserted that under
Lawrence, moral disapproval alone is not enough of a rationale for a state to
prohibit a private relationship.
And an 11th Circuit panel is expect to rule soon in Pryor
v. Williams, in which Alabama’s attorney general is defending his state’s
law that bans the sale of sexual aids or devices. Opponents of the law invoked
Lawrence during oral arguments last September before an 11th Circuit panel
that included Birch, the same judge who wrote last month’s Lofton decision.
But the criticism already leveled at Lawrence has some
analysts wondering whether the structure and language of Kennedy’s majority
opinion invited attack.
“What judges seem to be saying is that Justice Kennedy
may be too rhetorically poetic for his own good,” says Emory University
legal historian David Garrow, who has studied the Court’s privacy
jurisprudence. “It may sound winsome as moral commentary, but as
black-letter constitutional law, they are not impressed.”
Garrow sees a historical parallel to the early judicial
reaction to Lawrence. Nearly 50 years ago, in the aftermath of Brown v. Board
of Education, which found segregated public schools unconstitutional, some
federal and state judges interpreted Brown narrowly, ignored it, or even
defied it—until the Court forcefully ruled in Cooper v. Aaron in 1958 that
its Brown mandate could no longer be resisted.
“We’re in very much a 1956-type historical setting,
where the previous paradigm of inequality is suddenly upended and a surprising
new mandate of full equality is ordered,” says Garrow. “It’s no
surprise, now as 50 years ago, that there’s judicial resistance to the new
mandate as well as resistance from other quarters.”
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