Last edited: December 05, 2004

Court’s Opinion on Gay Rights Reflects Trends

USA Today, July 18, 2003
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By Joan Biskupic, USA TODAY

WASHINGTON—When the Supreme Court struck down laws banning sex between homosexuals last month, a dismayed Justice Antonin Scalia warned that the court was siding with gay men and lesbians in a “culture war.” He accused the majority of flouting public opinion and of opening the door to legal gay marriages.

But the court’s 6-3 vote to invalidate state anti-sodomy laws reflected a nation where polls indicate that most people now believe that homosexual relations between consenting adults should be allowed. Legal analysts across the ideological spectrum agree that the court’s decision in Lawrence vs. Texas also appears to mirror a growing public acceptance of homosexuals.

Polls indicate that most Americans continue to oppose legalizing gay marriages. But in the three weeks since the court’s ruling cited a right of privacy for homosexuals, it has become clear that many American institutions are ready, in various ways, to express support for gay men and lesbians:

  • A week after the June 26 ruling, Wal-Mart, the nation’s largest private employer and a mainstay of rural and suburban America, said it would ban job discrimination based on sexual orientation.

  • On July 6, The Dallas Morning News began running advertising notices of same-sex unions with its wedding announcements.

  • Two days later, The Boston Globe editorialized in favor of gay marriage and compared state laws against it to those that once banned marriage between whites and blacks. “It may be difficult to imagine a time when interracial marriage was considered an abomination by much of society,” the newspaper said, “... just as some day it will be hard to imagine that gay couples were once ostracized simply for trying to form stable families.”

Newspaper editorials on the East and West coasts praised the Supreme Court’s ruling, but so did many in the central part of the USA that generally are not as liberal, including The Des Moines Register and the Chicago Tribune. The Tribune’s editorial page noted that seven years ago it had supported Illinois’ “defense of marriage act,” which withheld recognition of any same-sex marriages granted in other states. (No state allows same-sex marriages, but Vermont allows “civil unions” for gay and lesbian couples.)

“That view has changed,” the Tribune said. It also said “it’s difficult to see how same-sex marriage would undermine traditional families.”

Opposing voices have not been as prominent, but religious broadcaster Pat Robertson has urged his followers to pray for the retirements of some justices who expressed support for gay civil rights. He says the court’s ruling “opened the door to (laws legalizing) homosexual marriage, bigamy, ... prostitution and even incest.”

Robert Knight, director of the culture and family institute at the Washington-based Concerned Women for America, says he hopes that more opposition will emerge.

“Justice Scalia is correct: The Supreme Court has become a wrecking ball against the moral order,” Knight says. “But I think (heterosexual) marriage will be defended in the end. I think a lot of people will say, ‘This far and no further.’”

In striking down state laws that prohibited oral and anal sex, the court did not address gay marriage. But the majority opinion by Justice Anthony Kennedy emphasized privacy for gay men and lesbians beyond sexual relations.

Kennedy added that states should not try “to define the meaning of the relationship or to set its boundaries, absent injury to a person or abuse of an institution the law protects.”

Lawyers on both sides of the debate believe that Kennedy’s references to gay privacy beyond sexual relations ultimately could lead to legal protections for gay marriages.

Analysts also say that Kennedy’s description of the “enduring” personal bonds of gay couples will encourage public acceptance of same-sex relationships.

“The public has looked to the Supreme Court as a source of moral guidance,” says Michael Dorf, a law professor at Columbia University in New York City. “The court cannot push society beyond where it wants to go, but it can give a gentle nudge to a poised social movement.”

Kevin Worthen, a law professor at Brigham Young University in Provo, Utah, says the court has “enormous credibility with the public. I think the ruling is going to have a real impact in the long term, even in conservative areas such as this one.”

Karlyn Bowman, who tracks trends in public opinion for the American Enterprise Institute in Washington, D.C., says “society is certainly changing its mind” on same-sex relationships.

Bowman cites surveys indicating that about 60% of Americans now believe that homosexual relations between consenting adults should be legal, up from just over 40% in the mid-1970s. She says people increasingly are aware of gay and lesbian co-workers, neighbors and acquaintances.

The Dallas newspaper’s decision to accept announcements of gay unions had been in the works for months, says Robert Mong, the newspaper’s president. “A lot of it came about because of the increasing diversity in our community,” he says. The response to the new policy generally has been positive, he says, although some readers have called to protest or to cancel their subscriptions.

Wal-Mart’s decision to ban discrimination based on sexual orientation came after a two-year campaign by gay rights groups. They were led largely by the Pride Foundation, a group in Seattle that raises money, gives grants to gay and lesbian organizations and invests in Wal-Mart stock.

Wal-Mart spokesman Tom Williams says there was no connection between the company’s move and the high court’s ruling a week earlier.

Zach Wright, a lawyer with Pride Foundation, says Wal-Mart’s new policy puts the company in league with many Fortune 500 companies but is particularly significant because of Wal-Mart’s “rural, conservative base.”

For opponents of increased gay rights, Wal-Mart’s action was a distressing endorsement of homosexuality.

“The ruling in the Texas case affects the public discourse in ways that encourage companies like Wal-Mart to make decisions that they otherwise wouldn’t make,” says Genevieve Wood of the Family Research Council.

The federal government and most states have laws like the one in Illinois that defines marriage as a union between a man and a woman. The laws allow states to ignore any same-sex marriage from another state; those laws are likely to be tested in court if some states begin allowing such marriages.

In a much-watched case, the Massachusetts Supreme Judicial Court is considering whether gay and lesbian couples have a right to marry under state law.

The issue probably will land at the U.S. Supreme Court—someday.

“The court will be ready to recognize marriage for gay people when the general public believes that the union of two gay people is morally similar to the union of two heterosexual people,” says Chai Feldblum, a Georgetown University law professor and an advocate for gay civil rights. “And I think we’re closer to that than I would have anticipated five years ago.”

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