Gay rights activists look toward marriage rights

BY Advocate.com Editors

June 27 2003 11:00 PM ET

In light of the U.S. Supreme Court's 6-3 ruling striking down sodomy laws nationwide, many gay rights activists and legal scholars are looking at how it will affect the battles surrounding other gay rights issues, in particular gay marriage. The decision did not spell out what the striking down of sodomy laws could mean for laws banning same-sex marriage and adoption of children by gays and lesbians, but Justice Antonin Scalia warned from the bench that the constitutional grounds for maintaining those prohibitions are now gone. "It is clear from this that the court has taken sides in the culture war," declared Scalia, who dissented from the ruling. And regarding a statement in the majority opinion that the sodomy law decision had nothing to do with the gay marriage issue, Scalia scoffed, saying, "Do not believe it."

Indeed, many are already arguing that the sodomy ruling could have implications far beyond the closed doors of private homes. In its broad language, the court said morality is no justification for discriminating against gays and lesbians. "The fact that the governing majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice," Justice Anthony M. Kennedy wrote, quoting approvingly from his colleague Justice John Paul Stevens. But marriage and adoption are more public matters than the intimate privacy issue the court dealt with in the Texas case. Justification for prohibiting marriage and adoption can be made on grounds beyond morals alone, if states choose to do so, experts say.

Still, battles for gay marriage and other rights are likely to be affected by the sodomy ruling. According to Lambda Legal Defense and Education Fund, the decision "begins an entirely new chapter" in the campaign for gay rights, including the right to marry. Executive director Kevin M. Cathcart told The Washington Post that the broader impact of the decision "promises real equality to gay people in our relationships, our families, and our everyday lives." Lambda, he said, plans to take the weekend to hatch a strategy and will announce on Monday "its aggressive plan for turning this landmark ruling into a reality."

Other activists and scholars said that by essentially acknowledging gay relationships as legitimate, the Supreme Court justices gave the gay rights movement a new credibility in debates about marriage, partner benefits, adoption, and parental rights, according the The New York Times. "The court has put gay people in the mainstream of society for the first time," said Paula Ettelbrick, executive director of the International Gay and Lesbian Human Rights Commission. "The court understands gay
sexuality is not just about sex, it is about intimacy and relationships. Now there is a real respect for our relationships, of us almost as families, that is not seedy or marginal but very much a part of society."
Speculation is already rife in several states about how the decision might be leveraged by gay rights groups to challenge antigay laws. Texas state representative Warren Chisum said he expects a legal challenge to a law he wrote this year--called the Defense of Marriage Act--that bars Texas officials from recognizing same-sex unions performed in other states. "It is kind of scary stuff," Chisum told the Times. "I think the court really opened the Pandora's box here that legislatures are going to deal with for many years in the future if they are concerned about the moral values of this country."

In Massachusetts proponents in a court battle to allow gays the right to marry in the state were elated by the ruling. The decision, they said, could only help their case, brought by several same-sex couples and currently before the supreme judicial court. Some pointed out that the fundamental right to liberty played a large role in the Texas opinion, as it did in the same-sex marriage arguments before the Massachusetts state court.

Others cited the majority decision's sweeping language about the rights of gays and lesbians to make intimate, personal choices. "This decision, I think, is a signal that there is no longer going to be a gay exception to the Constitution," Mary Bonauto, a lawyer for the Boston-based Gay and Lesbian Advocates and Defenders, which argued the gay marriage case before the supreme judicial court, told The Boston Globe. Still, the two cases differ in important ways, and opponents of same-sex marriage say the differences will limit the impact of Thursday's decision. Although both cases involve gay rights, the Supreme Court was interpreting the federal Constitution; the Massachusetts court, which may rule this summer on the same-sex marriage case, is looking to the Massachusetts constitution.

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