Independent Perspective News

—It was a homey scene. standing in their warm kitchen on a winter’s day in 2001, Julie and Hillary Goodridge, a couple for 16 years, played the old Beatles song “All You Need Is Love” for their young daughter, Annie. Hillary asked Annie if she knew any people who loved each other. The little girl rattled off the names of her mothers’ married friends, heterosexuals all. “What about Mommy and Ma?” asked Hillary. “Well,” the child replied, “if you loved each other you’d get married.”

THAT DID IT. “My heart just dropped,” said Hillary. The gay couple headed for the Massachusetts Department of Public Health to get a marriage license. Julie was optimistic, Hillary less so. “I thought we’d be led away in handcuffs,” Hillary recalled. Blood tests and $30 in hand, they anxiously asked for an application. “No, you’re not allowed to,” responded the woman behind the counter. “I’ll need two grooms first.” Hillary and Julie asked to speak to the department’s director. The woman politely told them, “No, you can’t get married, and there’s nothing you can do about it.”

Actually, there was. With the help of the Gay & Lesbian Advocates & Defenders (GLAD), Hillary and Julie sued for the right to be legally wed. Any day now, the Massachusetts Supreme Judicial Court is expected to decide their case. No court in America has ever recognized gay marital vows. But last week Hillary and Julie—and every gay person who wants to be married or adopt a child or hold a job or receive a government benefit or simply enjoy the right to be respected—received a tremendous boost from the highest court in the land.

The outcome of Lawrence et al. v. Texas, handed down on the final day of the Supreme Court’s 2002-2003 term, was not unexpected. In a Houston apartment five years ago, Tyron Garner and John Geddes Lawrence had been arrested by police for performing a homosexual act and fined $200. By a 6-3 vote, the high court struck down the Texas anti-sodomy law. In some ways, the Supreme Court was just catching up to public opinion. In 1986, in Bowers v. Hardwick, a decision that lived in infamy among gays in America, the court had upheld a Georgia anti-sodomy law. At the time, 25 states had such laws. Some 17 years later, only four states banned sodomy between homosexuals (an additional nine states had laws, on the books but rarely enforced, barring sodomy between any sexual partners).

What stunned court watchers—and what promises to change forever the status of homosexuals in America—was the far reach of the court’s reasoning. Gays “are entitled to respect for their private lives,” said Justice Anthony Kennedy, reading from his majority opinion from the high court’s mahogany bench. His voice was quiet and he seemed a little nervous, but his words rang with lasting meaning. Under the due-process clause of the 14th Amendment of the Constitution, Kennedy ruled, gays were entitled to a right of privacy. “The state cannot demean their existence or control their destiny by making their private sexual conduct a crime,” said Kennedy. In the crowded courtroom, some of the gay activists and lawyers silently but visibly wept as they listened.

Justice Kennedy’s ruling in the Lawrence case “may be one of the two most important opinions of the last 100 years,” says David Garrow, legal scholar at Emory University and Pulitzer Prize-winning biographer of Martin Luther King Jr. “It’s the most libertarian majority opinion ever issued by the Supreme Court. It’s arguably bigger than Roe v. Wade,” said Garrow, referring to the 1973 Supreme Court decision giving women a right to abortion. At least in symbolic terms, Garrow put the decision on a par with Brown v. Board of Education, the landmark 1954 ruling declaring that separate was not equal in the nation’s public schools.

But it may be years before the ripple effects of Lawrence are felt. Just as schools were still segregated in parts of the South a decade after the Brown decision, it is likely that attempts to give gays true legal equality with heterosexuals will encounter fierce resistance from people and institutions that still regard homosexuality as morally deviant. The battle—over gay marriage, gay adoption, gays in the military and gays in the workplace—will be fought out court to court, state to state for years to come. Nonetheless, there is no question that the Lawrence case represents a sea change, not just in the Supreme Court, a normally cautious institution, but also in society as a whole.

In 1986, when the court had ruled in the Bowers case, Justice Byron White curtly dismissed the argument that the Constitution protected the right of homosexuals to have sex in their own homes. Writing for the majority of justices, White had called such an assertion “facetious.” But social norms have been transformed over the past two decades. How mainstream is the idea of “gay rights”? Of the six justices who voted to strike down laws against homosexual sodomy, four were appointed by Republican presidents. (Kennedy, David Souter and John Paul Stevens all subscribed to a right of privacy for gays; Justice Sandra Day O’Connor stuck to the narrower ground that it was unfair to punish gays but not heterosexuals for sodomy.) Polls showed that the justices have public opinion behind them: some six out of 10 Americans believe that homosexual sex between consenting adults should be legal.

One veteran gay activist could sense the change in the attitudes of the justices. Kevin Cathcart, executive director of the Lambda Legal Defense and Education Fund, has been part of a small but determined circle of lawyers plotting gay-rights strategy since 1984. In the past, he had to deal with what he called the “ick factor”—the revulsion some heterosexuals feel about —homosexual acts. “The Kennedy opinion not only does not have an ick factor,” says Cathcart, “but is almost an apology for the ick factor 17 years ago.”

One justice was still full of disgust. In a biting, sarcastic voice, Justice Antonin Scalia read his dissent from the bench. He denounced his colleagues for “taking sides in the culture war.” He accused the court’s majority of having “largely signed on to the so-called homosexual agenda.” Most Americans, Scalia warned, “do not want persons who openly engage in homosexual conduct as partners in their business, as scout-masters for their children, as teachers in their children’s schools, or as boarders in their homes.” Scalia predicted that the court’s decision would cause “a massive disruption of the current social order” by calling into question the government’s right to legislate morality. While noting the majority’s statement that the case did not involve gay marriage, Scalia scoffed, “Do not believe it.”

Next page >