Monday, July 7, 2003

Marriage, military might wait their turn in court

By Marcia Coyle

Related Links:
  • U.S. Supreme Court decision in Lawrence v. Texas
  • U.S. Supreme Court decision in Bowers v. Hardwick (1986)
  • Appellants' brief in Massachusetts gay marriage case
  • Complaint in New Jersey gay marriage case
  • 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 majority opinion.

    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 biggest ones.

    "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 as criminals."

    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 said.

    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 and Montana.

    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.

    The military

    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 excluded group."

    The New Jersey and Massachusetts suits seeking gay marriage rely on guarantees of equality in the states' constitutions, said Feldblum.

    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 said.

    "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."

    Coyle's e-mail address is

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