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In Lawrence’s Wake

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Three years after U.S. sodomy ruling, its impact halting, yet significant

In 2003, the Supreme Court of the United States handed down its landmark sodomy ruling in the Lawrence v. Texas case. With the death last week of Tyron Garner, one of the two plaintiffs in the case, the decision once again popped into the news, though little has been written in the mainstream press in the intervening years about the broader implications of the ruling.

The suit, brought by Garner and John Lawrence who were convicted of violating Texas’s anti-sodomy law when arrested for having consensual intercourse in the privacy of a home, overturned all such statutes aimed at private, consensual, adult sexual behavior

Supreme Court Justice Anthony Kennedy, author of the majority ruling in the case, declared, “When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” Kennedy’s opinion specifically found that moral objections to homosexuality provide no “rational basis” for enacting laws against gays and lesbians.

A short five months later, the Massachusetts Supreme Judicial Court, that state’s highest, drew heavily on the Lawrence ruling in finding that the commonwealth’s Constitution guarantees the right of same-sex couples to get married.

Laws against sodomy had for generations been used to justify adverse rulings and statutes in many states regarding employment, adoption, and child custody, so the Lawrence ruling offered the promise that a broad judicial reassessment of laws and public policies excluding LGBT individuals from full participation in civic life might be in the offing. With the Massachusetts ruling, that hope extended to the possibility that the arguments for marriage equality in state courts might be significantly strengthened.

Indeed, in his harsh, even churlish, dissent, conservative Justice Antonin Scalia warned that taken to its logical conclusion, Kennedy’s opinion had removed constitutional impediments to marriage rights for same-sex couples.

However, the initial excitement Lawrence provoked has so far been tempered by a narrow reading of the decisions in many of the nation’s lower courts, both federal and state, and implicitly even at the Supreme Court.

The post-Lawrence era, beyond the Massachusetts Goodridge ruling, has seen significant court defeats on cases brought by gay plaintiffs on several important fronts. When the 11th Circuit Court of Appeals in Atlanta upheld the ban on gay adoption in Florida, the Supreme Court refused to hear an appeal. High courts in both New York and Washington State this summer rejected the right of same-sex couples to marry. A federal judge in Boston dismissed a case aimed at overturning the military’s Don’t Ask, Don’t Tell policy.

Plaintiffs in all these cases relied in part on the logic and precedent of Lawrence for their legal arguments.

When asked about this discrepancy between the Lawrence ruling and how other courts have used it, major LGBT advocacy organizations expressed the hope that it was only a matter of time before the gay-rights revolution predicted in the wake of Lawrence advanced.

“As a statement that gay people are people, it is very powerful,” said Lara Schwartz, legal director for the Human Rights Campaign, the nation’s largest LGBT rights group, based in Washington. “However, Kennedy’s more lofty language is not binding in any legal sense, but only an explanation for the ruling.”

Schwartz said that similar civil rights milestones enunciated by the Supreme Court have come behind a change in public opinion and local statutes as a “mopping up” action. By the time of Lawrence, most states had eliminated their sodomy laws over the course of a generation and the high court simply cleared away the holdouts. The 1967 Supreme Court ruling on anti-miscegenation laws followed a similar pattern, she said.

“Symbolically it was significant and demonstrated to the rest of America how far we have to,” Schwartz said.

In the struggle to overturn Don’t Ask, Don’t Tell, the military policy banning open service by gays and lesbians, big things were expected.

“Lawrence at least changed the legal landscape,” said C. Dixon Osburn, executive director of the Servicemembers Legal Defense Network, a group that counsels armed forces personnel affected by the gay ban. “It certainly has impacted every single aspect of our fight.”

Even though the Pentagon has held to its anti-sodomy regulations applicable to both heterosexual and homosexual personnel, Dixon said several cases before military courts have shown that Lawrence has weakened the prohibition by severely limiting the scope of its application.

Osburn pointed to three military sodomy cases thrown out on the strength of Lawrence, and to one case of a gay sodomy prosecution, in which a military court suggested that it might have found for the defendant had it not involved individuals of unequal ranks. Any such case, the ruling held, must be subject to a “searching constitutional review.”

“The prosecution of sodomy in the military is hanging by a thread,” Osburn said.

If the sodomy ban falls, he said, Don’t Ask, Don’t Tell’s days are numbered.

A new challenge to the policy is currently pending before a federal court in Massachusetts. The earlier ruling upholding Don’t Ask, Don’t Tell found that Lawrence did not trump military policies meant to ensure good order and discipline in the ranks.

It should be noted that there have been some significant victories. Even as New York and Washington rejected marriage equality arguments based in part of the need to offer children in same-sex households equal legal protection, Arkansas’ high court threw out that state’s ban on gay foster parents in the face of Lawrence. In a decision handed down by the U.S. Supreme Court, Kansas was forced to review its laws that created disparate penalties for sex among adolescents, one over and the other under the age of consent, based on whether the couple was opposite-sex or same-sex. The Kansas Supreme Court, in that review, threw out the discriminatory provisions of the law.

An attorney at Lambda Legal offered insight into why Lawrence has not yet had more significant impact on court rulings.

“What the courts haven’t decided is if these matters are a matter of fundamental liberty defined in Kennedy’s ruling,” said Ken Upton, a Lambda staff attorney for the Southwest Region.

Put simply, Lawrence did not establish that the rights at issue are so important that any restriction on their exercise must be put to the highest, most demanding level of judicial scrutiny. Upton noted that it is not unusual for lower courts to narrowly interpret higher decisions, applying them only to cases with similar facts. In the Washington and New York lawsuits, the states’ arguments justifying the exclusion of gay couples from marriage were not put to rigorous scrutiny—they were evaluated as to whether they were merely rationale, not whether they were compelling.

Sodomy restrictions were rejected by the Supreme Court because they failed even the most fundamental test of rationality. State courts other than Massachusetts have found that marriage restrictions can be seen as rational.

But Upton does not diminish the impact of Lawrence.

“It is still however the single most important Supreme Court case to affect LGBT rights,” he said. “The biggest impact was that it removed one of the last stigmas used to justify discrimination against gays and lesbians—that they were admitted criminals.”

Ross Levi, director of public policy and governmental affairs at the Empire State Pride Agenda, spoke to the political impact of Lawrence.

“At least as an informal talking point it has benefited us,” he said. “Whenever talking to a lawmaker who raises objections to gay rights based on his personal beliefs, we can say that under Lawrence that is no longer a constitutionally protected reason to deny someone rights. There is still the working assumption in much of government that morality is a perfectly good reason to outlaw something.”

Asked whether Lawrence had changed any minds or votes in Albany, Levi wouldn’t say.

But he and Upton agreed that Lawrence has at least enabled the same-sex marriage debate to be taken seriously in state capitals across the nation.

“Without the reasoning that same-sex relations are not a matter of private liberty, the whole conversation about whether marriage was even possible would never have happened,” Upton said.

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Updated 5:17 pm, July 20, 2018
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