Military Might Wait Their Turn in Court
Law Journal, July 7, 2003
105 Madison Avenue, New York, N.Y. 10016
By Marcia Coyle, Staff Reporter
Washington—Gay rights advocates,
energized by the U.S. Supreme Court’s landmark sodomy ruling, plan
litigation across a broad front.
The justices’ 6-3 decision in Lawrence v. Texas, No.
02-102, is viewed by supporters and critics as a sweeping tool that will be
used in courthouses, city council meetings and private employment places to
attack discrimination against homosexuals in all its forms.
That includes the refusal of governments to legalize gay
marriages. Two suits are under way in New Jersey and Massachusetts seeking
marriage rights for gay couples, and advocates on both sides of the issue say
the new ruling is sure to be influential.
One veteran Supreme Court litigator said the issue could
come before the Supreme Court in two years.
“Gay adoptions, foster care, custody—those issues are
over,” said the litigator, Jay Alan Sekulow, chief counsel to Pat
Robertson’s American Center for Law and Justice, which filed an amicus brief
supporting the Texas sodomy law. “They’ve won because of Lawrence. If I
were litigating for them, I would strike while the iron is hot. What’s the
next step? Gay marriage.”
One advocate on the conservative side said that gay
rights litigators should be circumspect. “From the perspective of organizing
litigation strategy, it’s an interesting quandary,” said Michael Greve of
the American Enterprise Institute. “You do want to move forward and say
Lawrence wasn’t the last step. But you don’t want to get into a situation
where Kennedy puts the brakes on. My sense is they will be fairly circumspect,
and marriage is not circumspect.” Justice Anthony M. Kennedy wrote the
Greve is a founding member of the Center for Individual
Rights, which coincidentally lost its long-fought attack on racial preferences
in the Michigan law school decision announced the same week as Lawrence. His
group was not involved in the gay rights case.
Chai Feldblum of Georgetown University Law Center, who
filed an amicus brief opposing the Texas law, predicted that post-Lawrence gay
rights suits will tend to focus on major issues but not, initially, the
“I think there’s no doubt what people want to use
Lawrence for first is not a frontal attack on the ban on gays in the military
or to achieve gay marriage,” she said. “There are so many other additional
forms of discriminatory government action that need to be dealt with first.”
In fact, the focus on gay marriage “is in some ways a
deliberate strategy of our opponents to make that the issue,” said Patricia
Logue, interim director of the Lambda Legal Defense and Education Fund, which
brought the Lawrence case to the high court.
“It’s somewhat ironic,” she added. “We have
fought for marriage in the courts for 10 years. Those cases don’t depend on
federal law per se. Lawrence obviously helps with that work and, I think, has
made people think about it in a new way.”
In Lawrence, the high court struck down Texas’ law
prohibiting intimate sexual conduct between same-sex persons as a violation of
the due process clause of the 14th Amendment.
The majority said that the Texas law, like the Georgia
statute upheld in Bowers v. Hardwick, 478 U.S. 186 (1986), sought to control a
personal relationship that, “whether or not entitled to formal recognition
in the law, is within the liberty of persons to choose without being punished
The high court overruled Bowers, and by grounding its
ruling in the liberty interest protected by the due process clause, gave
Lawrence the sweep necessary to undo other forms of discrimination against gay
people. Justice Sandra Day O’Connor joined in striking down the law but, she
said, she found the law unconstitutional on equal protection grounds.
The court recognized that Bowers had been used to justify
discrimination in many areas because of the criminal stigma attached to sexual
intimacy by gays.
“By not narrowly focusing on the discriminatory aspect
of Texas’ law as O’Connor did, and, instead, grounding Lawrence in a right
of privacy enjoyed by everyone in America, the court self-consciously said,
‘We are going to write a broader opinion than is necessary,’” said David
Cruz of the University of Southern California Law School.
‘Every nook and cranny’
Lawrence “is going to affect every nook and cranny of
gay rights law,” said James Esseks, litigation director of the Lesbian and
Gay Rights Project of the American Civil Liberties Union (ACLU).
He said that it eliminates the major justification for
treating gay people differently: Their relationships are criminal.
“When people trying to move the gay rights movement
forward went to a local city council and asked for an ordinance covering
discrimination against gays, someone inevitably gets up and says,
‘Bowers,’” he said. “When we go to an employer and ask for domestic
partner health benefits, someone says, ‘No, it’s too controversial and you
people are criminals.’ Courts take kids away from gay parents because
they’re concerned the parents are exposing kids to an illegal lifestyle.”
Only 13 states had sodomy laws and they were rarely
enforced. “States clung to these laws not because they wanted to put gay
people in jail but to express their moral disapproval of gay people,” Esseks
In her concurrence, O’Connor said moral disapproval of
a group cannot be a legitimate governmental interest.
Lawrence obviously marks the end of sodomy laws, said
Lambda’s Logue, a former attorney with Jenner & Block, whose partner,
Paul Smith, successfully argued the Lawrence case.
“We just had charges dropped in a Missouri case and
officials in Virginia are recognizing the decision,” she said. “They are
two of our most recalcitrant states.”
Beyond that, she said, “We feel the decision does
prevent states from drawing on these laws as they have in the past in the
parenting and employment context. To the extent people are not getting that
message, we will be bringing it home in litigation.”
The ACLU’s Esseks said, “We are going back to the
courts in states that have the most regressive positions on gay rights,
especially courts that have based their decisions on Bowers explicitly or on
the existence of a sodomy law.
“We’ll say, ‘You, Alabama, can no longer say gay
people can’t have custody of their own children simply because they are
gay.’” Lawrence, he said, will work a major change in family law for gay
men and lesbians and will influence custody, adoption and foster care cases.
On the last day of their term, the justices vacated the
criminal sentence of a young gay man and directed the Kansas appellate court
to reconsider it in light of Lawrence. The man, Matthew Limon, was serving a
sentence for having sexual relations with another minor. The sentence was 16
years longer than it would be had he been heterosexual. Kansas’ so-called
Romeo and Juliet law makes sexual relations with a minor a lesser crime if
both parties are teenagers, but only if they are of opposite sexes.
“The Kansas court, when presented with an equal
protection argument, said Bowers controls,” Esseks said. “Now we get to go
back to that court and say Bowers is gone.”
Lawrence sends a “loud message” to private employers
that discrimination against gays is not consistent with the court’s vision,
Logue said. “I think it will influence private policymakers as we just saw
with Wal-Mart’s new policy.”
The Lambda litigator also believes Lawrence’s respect
for gay relationships will provide an impetus for equality of employee
benefits. The ACLU has cases involving state employees’ benefits in Alaska
Lawrence also will be used against states that refuse to
allow birth certificates to name gay legal parents and against schools that
allow harassment of gay students or prohibit them from organizing.
Some gay rights litigators say a frontal assault on the
military’s “don’t ask, don’t tell” policy is unlikely. But Lawrence
will come up when a gay service member challenges his or her exclusion under
that policy, said Cruz.
“Doctrinally, I think Lawrence removes some of the legs
propping up that policy,” he said. “The only way to defend the policy is
the unit cohesion rationale—the presumed discomfort of heterosexual service
members—and that sounds like moral disapprobation at best or moral antipathy
to gay and lesbian people.”
Lawrence will have an impact but no guaranteed result in
either the military or marriage contexts, said Georgetown’s Feldblum.
The majority and O’Connor, she noted, wrote with an eye
to both institutions. Kennedy spoke of the state’s interest in preventing
“abuse of an institution.” And O’Connor said, “Other reasons exist to
promote the institution of marriage beyond mere moral disapproval of an
The New Jersey and Massachusetts suits seeking gay
marriage rely on guarantees of equality in the states’ constitutions, said
The Massachusetts case is Goodridge v. Dept. of Health
and was brought by Gay and Lesbian Advocates and Defenders (GLAD). A ruling is
expected soon by the Massachusetts Supreme Judicial Court.
The New Jersey suit, Lewis v. Harris, is brought by
Lambda Legal and is in a trial court.
“Both of these cases are the outcome of probably four
years of work and were very carefully developed,” she said. “If principle
and logic are to govern, then it is hard to see any reason to deny gay people
marriage other than moral disapproval.”
Sekulow, an opponent of gay marriage, said success at the
state level could lend impetus to an amendment to the U.S. Constitution that
would ban it.
With the loss in Lawrence, the only forum for opponents
is political, he said.
“The challenge for those opposed to the issue of
same-sex marriage is: How do you justify a marital distinction when you have a
decision basically finding fundamental rights involved and privacy?” he
“The political arena, not the courts, is the avenue
where opponents are more likely to have success. If you tried to get an
amendment limiting gay marriages today, you won’t do it. But if
Massachusetts says yes to marriage, you will.”
In 1996, Congress enacted the Defense of Marriage Act,
and roughly 36 state laws prohibit gay unions.
A federal challenge to the 1996 law could result if a
state high court approves gay marriage and a gay couple marries and seeks
federal recognition of that union, most likely for tax purposes. If the
government says no because of one of the statutes, a lawsuit could be mounted.
Suits against state laws also could result if American
gay couples marry in Canada and return to states that refuse to recognize the
union, said Cruz.
Lawrence “reshaped the landscape in a way that is
clearly profound,” said Lambda Legal’s Logue, adding, “and we don’t
pretend to know all of its implications yet.”
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