Revolution in Waiting

Taking the pulse of gay rights in the courts.

Five years ago this month, the Supreme Court struck down Texas’ consensual-sodomy law in a prosecution involving two men who were having sex in a private home. Justice Kennedy’s majority opinion in Lawrence v. Texas contained some high-flying rhetoric insisting that lesbian and gay Americans are ordinary citizens entitled to respectful treatment. Justice Scalia’s outraged dissent charged the court with reading the entire “homosexual agenda” into the Constitution and, further, predicted that the majority’s analysis spelled the end of all morals-based regulation of sexual conduct. At risk, Scalia warned, were laws against fornication, bestiality, adultery, bigamy, incest, obscenity, prostitution, and masturbation(!).

Echoing the charged debate within the court, Lawrence was hailed by the left and condemned by the rightas a landmark that would sweep away state sex-crime laws, invalidate anti-gay policies, and impose gay marriage on America. In fact, Lawrencehas, thus far, inaugurated no revolution. Sex-crime laws flourish, and there are today more statutes that restrict the rights of gay and lesbian Americans than there were in 2003. So what isthe real legacy of Lawrence?

To begin with, Justice Kennedy’s opinion declined to say that Americans have a fundamental right to pleasure. Consistent with this reasoning, lower courts have rejected Lawrence-based challenges to state and federal laws regulating incest, prostitution, obscenity, child pornography, bigamy, and sex with minors. There have been no reported challenges to bestiality or masturbation laws.

While fears that power-hungry judges would seize upon Lawrence to legalize incest and bigamy proved comically exaggerated, Lawrencehas had a subtler effect. Justice Kennedy’s opinion implicitly demanded that states defend laws governing sexual conduct with evidence that this conduct is causing harm to other people. Public distaste and moral condemnation are not sufficient to justify regulation. (Indeed, the Supreme Court has generally notupheld sexual-conduct laws without some evidence of tangible harm to others.) Accordingly, the Virginia Supreme Court has applied Lawrence to strike down a state law making it a crime for consenting men and women to have penile-vaginal sex outside of marriage, and the U.S. Court of Appeals for the 5th Circuit has said that the use of sex toys by consenting adults is constitutionally protected. The upshot, then, has not been the collapse of sexual-conduct laws but instead a modernization of their justification.

Did Lawrencewrite the “homosexual agenda” into the Constitution? After the ruling,the Kansas Supreme Court struck down a state law penalizing juvenile homosexual relations much more severely than the same heterosexual relations; the court reasoned that the different penalties reflected anti-gay prejudice, no longer an acceptable state justification. But other courts have passed on some worthy claims. In the 2004 case, Lofton v. Department of Children & Family Services, for example, the U.S. Court of Appeals for the 11th Circuit upheld a Florida law barring lesbian or gay adults from adopting children.

On the other hand, Lawrencehas probably helped make the country more gay-tolerant. Justice Kennedy’s opinion noted that lesbian and gay Americans productively participate in their communities, join in committed relationships, and raise children. This point has resonated. Since Lawrence, more school districts have backed away from discriminating against gay teachers and students, more municipalities welcome lesbian and gay employees, more states allow two women or two men to have parental rights to the children they are raising together, and more police departments are protecting gay and transgender citizens against hate crimes rather than harassing them. In the middle of a war, the Bush administration has relaxed enforcement of the military exclusion of gay people. Judicial activism, 0; political toleration, 1.

How about the rush to gay marriage, the punch line of Justice Scalia’s heated dissent? This sounds like Scalia’s silliest argument. To say that the state cannot brand a gay couple as criminals because of their sexual intimacy is a far cry from saying the state must recognize their relationship as a marriage. The former is toleration; the latter signifies greater civil approval. For this reason, litigants have notpressed claims that Lawrence itself knocks down the exclusion of same-sex couples from all state civil-marriage laws.

But if premature as a legal matter, Justice Scalia’s jump from sodomy to marriage contained a great insight. Once a despised social group has achieved constitutional protection against harmful discrimination—sodomy laws for gay people, Jim Crow laws for people of color—the group will aspire toward full constitutional equality, including recognition of its members’ relationships and families. The civil rights movement attacked the segregated schools and facilities of the South before it went after laws barring interracial marriages; indeed, the court did not sweep away anti-miscegenation laws until 1967.

On gay marriage, Lawrence has had a slow-moving but unmistakable effect. In 2003, the Massachusetts Supreme Judicial Court invalidated that state’s same-sex marriage ban. The court mentioned Lawrence but relied on the state constitution. State courts rejected state constitutional marriage challenges in Arizona (2003), New Jersey (2006), New York (2006), Washington (2006), and Maryland (2007). Then, weeks ago, the California Supreme Court welcomed gay couples into the summer wedding fold. Although the California court, like the one in Massachusetts, invoked its own state constitution, it also explicitly relied on Lawrenceto say that gay couples have a fundamental right to civil marriage. And it went further by implicitly relying on Lawrence to say that when laws make distinctions about people because of their sexual orientation, those statutes will be subject to a more scrutinizing level of judicial review—just as laws that draw distinctions based on race, sex, and religion are.

The new California marriage decision truly is a landmark in American constitutional law. If other states follow, as they did after the California Supreme Court struck down the state’s ban against interracial marriage in 1948, then gay marriage will become a political reality all over America. And a future U.S. Supreme Court will probably one day also follow California’s lead to make marriage equality (or whatever the states agree on) a national constitutional right.

The legacy of Lawrence v. Texas thusis still up for grabs. And it’s in the hands of not only state judges and legislators but also the country’s next generation. If they accept their lesbian and gay neighbors as full and equal citizens, as we think they will, Lawrencewill be for gays what Brown was for blacks: a judicial contribution to a revolution in public attitudes as well as to the law.