A Yea For Gays

It's not often you hear Supreme Court Justices treat their brethren with such scorn, or trash a recent decision as being dead wrong or see lawyers weep as a ruling is read. But Thursday was an emotional day inside and outside the court, as preachers prayed and scholars marveled and gay-rights activists struggled to find the right words, since they were more used to slamming the court than saluting it.

Only 17 years ago, the court upheld Georgia's sodomy law in Bowers v. Hardwick; but last week the court dumped its own precedent, voting 6 to 3 to throw out a Texas law prohibiting private homosexual conduct. The Texas case arose in 1998 when a neighbor with a grudge called the Houston police to investigate what he claimed was a disturbance next door; the cops arrived to find John Geddes Lawrence and Tyron Garner in bed together and arrested them under Texas' antisodomy laws. The men were each fined $200 and spent the night in jail. Once the Supreme Court agreed to hear the case, hopes rose among gay activists that maybe some of the Justices were ready to reconsider how far the right to privacy extends.

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Lawrence v. Texas turns an issue that states have historically decided for themselves into a basic constitutional tenet. Even supporters expressed surprise at Justice Anthony Kennedy's language, given this court's allergy to broad social pronouncements. "The petitioners are entitled to respect for their private lives," Kennedy argued. "The State cannot demean their existence or control their destiny by making their private sexual conduct a crime." The court's majority based its landmark decision on a belief in "a realm of personal liberty which the government may not enter." To opponents, it meant that any law based mainly on moral norms was now vulnerable; to supporters, it meant that the court had recognized the legitimacy of homosexual relations, so any law that discriminates against gays could be ripe for reversal. And with that, the latest battle over liberty, morality and privacy begins.

Gay-rights activists declared Lawrence a victory on the scale of the Brown v. Board of Education decision, which desegregated schools in 1954. Cooler heads noted that in immediate, practical terms the ruling will have nothing like the impact of Brown, which fundamentally changed how American families live and learn. Only 13 states still have sodomy laws on their books, and they are seldom enforced.

But in cases like this the symbolism, over time, can shape the substance, and so there were people on both sides eager to rally their supporters by declaring the ruling a watershed. Even if the sodomy laws weren't often enforced, says Harvard law professor Laurence Tribe, who lost the Bowers case and was present in court last week, "the existence of these laws was an excuse for harassment and discrimination, and a labeling of a whole group of people for whom this is the primary form of physical sexual intimacy as deviant and criminal. A lot of people feel that that yoke has been lifted."

But opponents felt just as passionately that America's moral foundation was crumbling completely. "The Lawrence decision is an error of biblical proportions," says Scott Lively of the Pro-Family Law Center in Sacramento, Calif. "[As a result] I predict the already enormously powerful gay political lobby in our state will consolidate its power further, and that every item on its agenda is going to get pushed through." The dissenters on the high court, led by Justice Antonin Scalia, charged that the majority grounded its decision not in the Constitution or the law but in the climate of the times. By inventing a brand-new constitutional right, they were ignoring the right of citizens in a democracy to pass laws that reflect their values without having courts overrule them. "It is clear from this that the Court has taken sides in the culture war," he wrote in an especially scalding dissent and warned of undermining laws against bestiality, bigamy, prostitution and incest. He further suggested that the court's attempt to cordon off this decision from others, especially gay marriage, was naive.

The decision was not, strictly speaking, a "liberal" one, another sign of a left-tilting court, which earlier in the week upheld the basic principle of affirmative action. Many conservatives of a libertarian streak abhor the idea of a government so vast and intrusive that it tells people what they can do in private.

Still, those who applauded last week's ruling for "confirming the dignity" of homosexuals were setting the bar rather low, given the barriers that remain. "It's one thing to say there's a fundamental right to sexual intimacy," observes Harvard law professor Richard Fallon, "and another to say there's a fundamental right to marriage." Vermont's civil-unions law is still a kind of "separate but equal" equivocation; the military's "Don't ask, don't tell" policy instituted in 1993 has not stopped 9,000 service members from being discharged since then. And in most states, gays do not enjoy the same protection from employment discrimination that others do. Even as he welcomed "the homosexual emancipation," David Smith of the Human Rights Campaign lamented that "you can still be fired from your job for being gay."