Gay rights no easy sell in courts

Despite high-profile victories, gay-rights activists have lost most recent cases

By , Staff writer of The Christian Science Monitor

Last June, the US Supreme Court gave a major boost to gay rights, overturning a 17-year legal precedent that had allowed states to criminalize private homosexual conduct.

Now, lower court judges are getting down to the important work of applying the high court's decision to a crop of new cases.

Gay-rights activists were hopeful that the Lawrence v. Texas decision would mark a turning point in the fight to end what they see as the second-class status of homosexuals in America. But at least so far, the record shows otherwise. Of five important gay-rights cases decided since the Lawrence ruling, gay-rights activists have lost all but one.

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The outcome is evidence of an ongoing debate in courtrooms and legislative assembly halls across the country. It is a debate reflecting a fundamental disagreement within the US Supreme Court itself over the proper role of sexual morality in the law.

Should the law impose majority notions of right and wrong, or must laws be based on more neutral ground, embracing principles that facilitate individual liberty and equality?

The issue was thrust center stage last June in the Lawrence decision, an opinion that recognized for the first time that consenting adults have a constitutional right to engage privately in homosexual conduct without government interference. In reaching that decision, the majority justices overturned a key legal precedent that had held that states were justified in criminalizing homosexual conduct because it violated the shared moral values of society.

"The issue is whether the majority may use the power of the state to enforce these views [of morality] on the whole society through operation of the criminal law," wrote Justice Anthony Kennedy in the majority opinion in Lawrence. "Our obligation is to define liberty for all, not to mandate our own moral code."

Not so fast, countered Justice Antonin Scalia in a dissenting opinion. "The law, it is said, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated ... the courts will be very busy indeed," he warned, quoting from the now overturned precedent.

Thus was the stage set for the current showdown over same-sex marriage and gay and lesbian civil rights. If morality is no longer an acceptable justification for state laws and regulations that treat homosexuals differently from heterosexuals, a long list of laws suddenly look constitutionally suspect.

Justice Scalia told his fellow justices they had just opened Pandora's box. Not only same-sex marriage and the ban on gays in the military, but laws against bigamy, adult incest, prostitution, adultery, bestiality, and obscenity are all based on moral choices, he said, and all are now open to challenge on constitutional grounds. "This effectively decrees the end of all morals legislation," Scalia declared.

But eight months after Lawrence v. Texas shocked conservatives and drew cheers from gay-rights supporters, Lawrence is emerging as a far less revolutionary legal precedent than first advertised by Scalia. Lower courts have issued five rulings since Lawrence, but only one was a victory for gay rights. That victory - requiring recognition of same-sex marriages in Massachusetts - is based on a broad reading of the state constitution rather than any newly recognized federal rights stemming from Lawrence.

While the Massachusetts case is hugely important to the gay-rights movement, elsewhere in the nation, other judges who have been asked to apply - and expand upon - the Lawrence precedent have been anything but friendly to gay rights. Same-sex marriage cases have been dismissed in Arizona and New Jersey. A federal appeals court panel in Atlanta has upheld Florida's ban on adoption by gays, even though that state allows gays to be foster parents. And a state appeals court in Kansas, by a 2-to-1 vote, upheld a state law that provides significantly harsher punishment for gay teens who engage in homosexual conduct with a much younger teen than a heterosexual teen who engages in similar conduct with someone of the opposite sex.

The Kansas case is particularly significant because the US Supreme Court remanded it to Kansas for further consideration one day after announcement of the Lawrence decision. Many analysts had expected the Kansas appeals court to strike down part or all of the law. It didn't.

In upholding the Kansas law, the state appeals court adopted a narrow reading of the Lawrence precedent, saying it applies only to cases involving consenting adults in the privacy of a home. Since the Kansas case involved a minor, the Lawrence decision does not apply, the court said. The Kansas court went on to say that state lawmakers were justified in passing a law with punishments skewed against gay teens because it was an attempt to protect the morals of Kansas children.

"The legislature could have reasonably determined that to prevent the gradual deterioration of the sexual morality approved by a majority of Kansans, it would encourage and preserve the traditional sexual mores of society," the Kansas court said in its majority opinion.

In an exchange that mirrors the morality debate at the US Supreme Court, the dissenting judge in the Kansas case said the state must show more than the existence of moral disapproval to justify a law that punishes homosexuals more harshly than heterosexuals. "Lawrence is only the most recent example of the duty of the courts to protect the constitutional rights of all people and not just those with whose code of morality we fully agree," the dissenting judge said.

Bill Murray of the conservative Family Research Council says the Lawrence decision is propelling the nation toward amorality. He says Scalia's alarmist assessment of the implications of the Lawrence decision will ultimately prove to be correct.

In contrast, Doug Kmiec, a professor at Pepperdine Law School, says Scalia was being "unnecessarily dire" in his dissent. "Morals legislation is not at an end. It just must be based on reasoned grounds and not asserted as a matter of majority will," he says. "Justice Kennedy was attempting to write an extremely narrow holding that was largely aimed at a moral consideration itself, namely, the scope and ability of the law to shape individual moral behavior," Mr. Kmiec says.

"When Scalia assails the Kennedy opinion, he is overlooking part of the motivation of that opinion - a recognition of the limits of the law," Kmiec says. "The law depends on churches and schools and families to be the primary moral educator."

Susan Sommer, a lawyer with the gay-rights advocacy group Lambda Legal, disagrees that Lawrence should be read narrowly. "When there is a breakthrough by the US Supreme Court, as we saw in Lawrence, it takes some time for the lower courts to catch up, understand the full importance of the decision, and move beyond old assumptions about a group," she says. "I am confident that with time the lower courts will catch up."

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