The Changing Battlefield in the Gay Marriage War:
The Progress of a Civil Rights Movement Outside and Within the U.S. Supreme Court

By EDWARD LAZARUS

Thursday, Mar. 04, 2004

As the cultural war heats up over the issue of gay marriage, it is worth reflecting on how much and how quickly the battlefield has changed.

Only 20 years ago, gay bashing was commonplace in "polite" society, and the idea of gay rights had yet to make a dent in the nation's political consciousness. Now, however, one of the most conservative Presidents in U.S. history -- despite proposing a constitutional amendment outlawing gay marriage -- tiptoes around the morality of homosexuality, and feels compelled to accept the possibility of gay and lesbian civil unions.

In every civil rights movement, there comes a time when public figures and the cultural elite no longer countenance blatant acts of discrimination: when it is no longer okay to use the "N-word," or wolf-whistle at a woman, or display a cigar store Indian. These are tipping points (to borrow a fashionable phrase) in the push to equality -- the point when the rock of Sisyphus stops falling back, and instead rolls over the summit and sweeps downhill towards the promised land of full and equal rights.

I cannot say whether the gay rights movement has yet reached that summit. But, if not, it is surely close. And to understand how far the gay rights movement has come, one need look no farther that the U.S. Supreme Court, the institution of the national government most responsible for the change.

The Court Only Seventeen Years Ago: Deeply Torn Over Anti-Gay Sex Criminal Laws

In 1986, the Supreme Court took up the famous -- indeed, notorious -- case of Bowers v. Hardwick. The case arose when Michael Hardwick was arrested for violating Georgia's criminal ban on sodomy after police entered his home and found him in bed with another man.

In defending himself against the criminal charge, Hardwick challenged the constitutionality of Georgia's ban on sodomy. Specifically, he argued that his constitutional right to privacy included a right to engage in homosexual sex and, thus, meant that Georgia's sodomy law should be struck down.

As a legal matter, Hardwick's case involved one of the most difficult areas of constitutional law. The Constitution does not explicitly recognize a "right to privacy." Nonetheless, a line of Supreme Court precedents -- including the ever-controversial Roe v. Wade -- have found what amounts, more or less, to just such a right.

These cases have held that the Constitution's due process clause -- which states that no person shall be deprived of "liberty" without due process of law -- includes a right to make certain deeply personal decisions without interference from the government. The issue in Hardwick's case was whether that zone of constitutional liberty was broad enough to include a right to engage in consensual homosexual sex within the confines of a private home.

Inside the Court, Hardwick's case provoked polar opposite reactions. The four more liberal justices (William Brennan, Thurgood Marshall, Harry Blackmun, and John Paul Stevens) were comfortable embracing Hardwick's privacy claim.

These justices saw Hardwick's argument as a natural extension of the Court's privacy jurisprudence - which protected both decisions related to sex (such as the choice to use contraception or obtain an abortion), and also placed great emphasis on the privacy of the home (which is especially sacrosanct from searches under Fourth Amendment jurisprudence). By their lights, those two strands of decisions converged when -- as in Hardwick's case -- both sex and privacy were at issue, and made for a clear result: Hardwick's act could not constitutionally be criminalized.

On the other side, however, Chief Justice Warren Burger was apoplectic at the thought that the Court might read into the Constitution a right to engage in homosexual sex. Three other justices (Byron White, William Rehnquist, and Sandra Day O'Connor) had strong philosophical aversions to expanding the right to privacy - and so they, too, lined up against Hardwick.

With these justices split 4-4, the swing vote in Hardwick belonged to Lewis Powell, the Court's consistent centrist. He genuinely didn't know what to do. Powell believed generally in a constitutional right to privacy. But extending it to homosexual sex made him uncomfortable.

As Powell freely confessed to his colleagues, he was operating in ignorance. Powell did not think he had ever actually met a homosexual -- even though one of his own clerks that year was gay.

Powell's indecision provoked an urgent response from Chief Justice Burger. He sent Powell a private letter pleading with him to vote against Hardwick. In the letter, Powell argued in no uncertain terms that extending the right to privacy to homosexual sex would threaten the very foundation of western civilization. And, in the end, Burger's lobbying carried the day.

Powell voted with Burger, and the Supreme Court denied Hardwick's claim by a 5-4 vote. Justice Byron White's brief and dismissive majority opinion reflects at best a callous indifference (and perhaps a latent hostility) to the concerns of homosexuals caught between sexual desire and criminal sanction.

But it is Burger's concurrence that deserves special note. There, Burger wrote approvingly that "Blackstone described 'the infamous crime against nature' as an offense of 'deeper malignity' than rape, a heinous act 'the very mention of which is a disgrace to human nature,' and 'a crime not fit to be named.' "

In addition, Burger opined that "To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching."

Seventeen Years Later, the Court Holds Sodomy Cannot Constitutionally Be a Crime

Fast forward to 2003 -- when the very issue decided in Hardwick returns to the Supreme Court, in the case of Lawrence v. Texas.

John Geddes Lawrence, like Hardwick before him, was surprised in his bedroom by local police while engaging in homosexual sex. Charged with violating Texas's criminal statute outlawing gay sex, Lawrence raises the same due process defense Hardwick had raised unsuccessfully 17 years earlier (as well as a claim based on the Fourteenth Amendment's Equal Protection clause).

Yet Lawrence wins at the Supreme Court -- and not by a 5-4 vote. He wins by a vote of 6-3. Moreover, the Court specifically overrules its previous decision in Hardwick.

Not only that, the majority opinion -- written by the social and political conservative Justice Anthony Kennedy -- disavows Burger's Hardwick concurrence, and resoundingly affirms the choice to be gay as a central part of the Constitution's promise of liberty.

The homophobic voice of Burger can still be heard, but this time, it is only the voice of two Justices -- Justice Scalia and Chief Justice Rehnquist. Justice Antonin Scalia's outraged dissent defends the right of states to express moral disapproval of homosexuality. It complains that "[t]oday's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct."

Even Scalia feels compelled to add a "Not that there's anything wrong with that" disclaimer -- writing "Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means." But it's simply not convincing, given the tone of the rest of his opinion.

It is Justice Clarence Thomas's dissent that is more telling. Though Thomas joins Scalia's dissent, he also distances himself from Scalia through his own, separate dissent. And there, Thomas goes out of his way to describe Texas's law banning gay sex as "uncommonly silly."

Indeed, Thomas goes so far as to imagine himself a legislator taking a pro-gay-rights stance! He writes, "If I were a member of the Texas Legislature, I would vote to repeal [this law]. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources."

In sum, then, we have the gay plaintiff winning 6-3; a conservative justice turning in a passionate opinion vindicating gay rights; another conservative Justice, Justice O'Connor, concurring with that pro-gay rights opinion; a defensive dissenting conservative Justice borrowing from Seinfeld; and another dissenting Justice openly taking a libertarian stance when it comes to gay sex.

We have indeed come a long way, baby.

A Legal Revolution that Also Reflects a Moral Revolution

Lawrence reflects a moral as well as legal revolution. Between 1986 and 2003, the Court moved from outright hostility towards gay rights to a warm embrace.

And nothing captures this shift better than the change at the center of the Court. In 1986, Powell, the swing vote on a relatively liberal Court, was totally clueless about -- and, at best, indifferent to -- homosexuality. In 2003, Kennedy, a justice near the center of a much more conservative Court, bluntly denounces laws banning the sexual expression of homosexuality as a form of bigotry and "oppression."

Such moral pronouncements from the Supreme Court do matter. They move the marker of what is socially acceptable, and such movements develop a momentum of their own.

After the Supreme Court issued its 1954 decision in Brown v. Board of Education, it took 13 years before the Court took the additional step, in Loving v. Virginia, of declaring unconstitutional laws banning interracial marriage.

Radical social change does not arrive or gain acceptance overnight. But once the tipping point is past, it comes, ineluctably. And, so, almost surely, it will again.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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