Deconstructing Marriage: What Will Be Legalized Next?
By Jeff Johnson Congressional Bureau Chief
June 30, 2003

Capitol Hill ( - If homosexual activists have their way, the Supreme Court's ruling in the Lawrence v. Texas - that homosexual sodomy cannot be outlawed - will be used to force states to grant legal recognition of homosexual "marriages" performed in other states and even in other countries. While legal scholars on both sides of the Lawrence debate agree that the decision does not provide a basis to deconstruct traditional marriage, other laws regulating sexual activity may be in serious jeopardy.

Justice Anthony Kennedy, writing for the majority, seemed to rule out the possibility state laws that define marriage as only being possible between one man and one woman could be challenged, based on the Lawrence case.

"It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter," Kennedy wrote.

Roger Pilon, vice president for legal affairs at the Cato Institute, agrees with Kennedy that the potential legitimization of homosexual unions "is a very separate issue.

"Yesterday's decision dealt with the state's staying out of a relationship [saying], 'We're neither going to approve nor disapprove,'" Pilon said. "They gay marriage issue is one that calls for the state to give its affirmative imprimatur to a relationship, to affirmatively recognize it."

Glen Lavy, an attorney with the pro-family Alliance Defense Fund, is clinging to Kennedy's specific statement that the Lawrence case does not involve the issue of homosexual unions.

"Based on that, we will take the position that this opinion has no bearing on same-sex 'marriage,'" Lavy said.

Nonetheless, he still expects homosexual activists to try to use the decision as a basis for seeking legal recognition for such relationships. Other pro-family groups, including Dr. James Dobson's Focus on the Family, expect homosexual activists to take advantage of the legalization of homosexual "marriages" in Canada.

"Some homosexual couples will go to Canada, get 'married,' come back home and want to have their 'marriage' licenses honored here," warned Focus on the Family's vice president for public policy, Tom Minnery.

The potential damage to marriage, Lavy warned, is incalculable.

"We have so undermined the meaning of marriage already in this country through the easy divorce laws that you can understand why some of the homosexuals can say, 'Well, you've changed it so much, why would you keep us out?'" he acknowledged. "But the reality is that we need to strengthen marriage, not weaken it further."

Matt Daniels, president of the Alliance for Marriage, appeared with Minnery on Dobson's program Friday. He urged the passage of the proposed Federal Marriage Amendment (FMA), which would constitutionally mandate that marriage can only be between two individuals of the opposite sex.

"This represents the consensus of the American people that marriage is a man and a woman," Daniels said. "It takes the courts completely out of the business of social revolution and remaking the family at the request of activist groups."

Prostitution could be challenged as a result of court's decision

In addition to apparently excluding the legal status of homosexual relationships, Kennedy initially set aside any discussion of legalizing prostitution.

"The present case does not involve...public conduct or prostitution," Kennedy wrote

Pilon said the court has always viewed sex within a relationship differently than sex for hire. "There the issue is, it's for commercial purposes," he explained, "and the court has always sanctioned regulation of commercial activities more easily than regulation of personal activities."

But a later statement in the majority opinion, Pilon believes, may have opened the door to a future challenge to anti-prostitution laws.

"The petitioners are entitled to respect for their private lives," Kennedy wrote. "The State cannot demean their existence or control their destiny by making their private sexual conduct a crime," he added. "Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government."

Pilon said most Libertarians believe sex for hire should be legal and hopes the Lawrence decision is a step in that direction.

"Why should commercial relationships be subject to any greater regulation than non-commercial relationships?" Pilon asked. "Therefore, this does leave it open for prostitution as the next candidate, which I would enjoy seeing."

Lavy finds some comfort in the fact that the court did not explicitly extend the Lawrence decision to prostitution, but he is not as happy about the ruling's implications.

"If you've got two consenting adults," he asked disapprovingly, "where is the constitutional mandate that says it's not private, consensual activity if money changes hands?"

Scalia believes decision 'will have far-reaching implications'

In a dissenting opinion joined by Justice Clarence Thomas and Chief Justice William Rehnquist, Justice Antonin Scalia wrote of his belief that the majority's ruling opened the door to much more than just legalized prostitution.

"State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity are likewise sustainable only in light of [the court's prior] validation of laws based on moral choices," Scalia wrote. "Every single one of these laws is called into question by today's decision."

Lavy said Scalia's worst-case scenario predictions are "very clearly the result of this opinion.

"I think that this case will extend to prostitution, I think it will also extend to any adultery laws," he added disapprovingly. "If private consensual sex is the issue, then you cannot have any penalty."

Scalia warned of dire consequences should challengers successfully apply the protection extended to homosexual sodomy in the Lawrence case to other so-called "adult, consensual sexual activities."

"Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority's belief that certain sexual behavior is 'immoral and unacceptable' constitutes a rational basis for regulation," Scalia wrote. "The impossibility of distinguishing homosexuality from other traditional 'morals' offenses is precisely why [the court previously] rejected the rational-basis challenge.

"The law," he concluded, quoting from a previous Supreme Court decision, "is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed."

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