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Scalia’s fulmination was impressive, but (as even he might privately concede) it was also an overstatement of the legal and political reality, at least for the immediate future. While gays can now claim some constitutional protection—their new right to privacy under the Lawrence decision—the federal government and the states can override those rights if they have a good enough reason, a “legitimate state interest.” Thus, national security could trump privacy in the military and preserve the Pentagon’s “don’t ask, don’t tell” policy on gays. Or the state’s interest in preserving “traditional institutions”—like marriage between different-sex couples—might overcome a homosexual’s right to not be “demeaned,” as Justice Kennedy put it. After Lawrence, gays can no longer be branded as criminals. But that does not mean they will enjoy all the rights of “straight” citizens. The current Supreme Court has shown, albeit erratically, a federalist streak: it will not lightly trample “states’ rights”—that is, second-guess the power of states to make up their own rules, especially if popular opinion is running strong.

Inevitably, politics will play a role. Some conservative groups were apoplectic. “People of faith are not going to lie down and allow their faith to be trampled because a politically correct court has run amok,” promised the Rev. Lou Sheldon, president of the Traditional Values Coalition. He offered a hint of the battles that lie ahead when a vacancy opens up on the high court. “In this court, you do not have friends of the Judeo-Christian standard. We know who our friends are. And we know who needs to be replaced,” said Sheldon. Sandy Rios, president of the Concerned Women for America, predicted moral Armageddon. “We’re opening up a complete Pandora’s box,” she said. Some conservatives, including Justice Scalia, warned that the court’s decision would undermine laws barring bigamy, incest and prostitution.

Maybe. But states will still be able to ban sexual practices that are obviously hurtful or exploitative of women or minors. Nonetheless, the fear of legalized wantonness will quickly become a campaign issue. Last week the White House—which decided not to file a brief in the case—was taking cover; White House spokesman Ari Fleischer defensively mumbled that gay rights were a matter for the states to decide. Bush’s political handlers were fearful of alienating either gay voters or the legion of Christian conservatives who provided Bush with his electoral base in 2000. “Bush officials apparently think homosexual activists make better leaders than the conservative activists who delivered millions of votes,” taunted Bob Knight, director of the conservative Culture and Family Institute.

The fight over gay rights could easily become a “wedge issue” in the 2004 presidential campaign, though Democrats, too, will be wary of getting ahead of public opinion. For the most part, gay rights will be fought out at the local and state level. The struggle will be protracted and there may be a real backlash. An overview of the main battlegrounds: Gay Marriage. Although gay couples routinely have commitment ceremonies and The New York Times wedding pages now run photos of gay and lesbian pairings, no state in the country recognizes or grants gay marriages. (Churches are badly split, with some denominations honoring same-sex un-ions and others vehemently opposing them.) Vermont comes the closest of any state with “civil unions” that bestow many of the same rights and responsibilities as marriage, but give it a different name—for purely political reasons. A few other states, most notably Massachusetts and California, seem to be edging toward the recognition of gay marriage, either by legislation or judicial fiat. But the stronger movement, at least for now, appears to be in the other direction. Some 37 states—and the federal government—have adopted “Defense of Marriage Acts,” which define marriage as applying only to a man and a woman, and—significantly—bar recognition of same-sex marriage from other states.

These laws will inevitably be challenged in the courts under the Lawrence decision. On June 11, a court in Ontario, Canada, ruled that same-sex marriages are legal (they are also legal in the Netherlands and Belgium). Last weekend in Toronto, during the city’s Gay Pride celebration, the city’s marriage office stayed open for extended hours. A dozen of the first 200 customers were Americans who had driven across the border. Legal experts are divided over whether a gay couple with a Canadian marriage license will be recognized back in the States, but they are sure that sooner or later the issue of gay marriage will wind up in the Supreme Court, though probably not for several years.

By then the court may be, as the saying goes, following the election returns. Gary Bauer, the president of American Values and a former presidential candidate, warned that if the Republicans do not take a stand against gay marriage in the 2004 election, then GOP “family values” activists might just sit home rather than work for the party. On the other hand, Bush may pick up votes from libertarians and Republican moderates (the “soccer moms”) if he is seen as being compassionate or tolerant of different sexual orientations.

Adoption and Custody. Most states now permit single gays to adopt children. Resistance to gay adoption has waned as studies show that children raised by gays look a lot like those raised by straights—and are no more or less likely to be gay. Still, only 11 states permit same-sex couples to adopt children. The rest of the states are a patchwork of conflicting rules. Florida, swayed by Anita Bryant’s 1977 “Save the Children” campaign, is the most restrictive, banning adoption by any gay or lesbian individuals. That law, based largely on moral disapproval, seems vulnerable after Lawrence.

The most immediate impact of Lawrence will be on custody battles. One Virginia judge, for instance, asked a lesbian to detail her homosexual acts in court testimony and then told her she would lose her child because her behavior was immoral. That sort of reasoning will likely no longer pass constitutional muster.

Gays in the Workplace, Schools and the Military. Big employers have already gotten the message. In 1992 only one of the Fortune 500 companies offered benefits to gay partners. Today the number is 197, including 27 of the top 50. Unfounded worries about getting tagged with massive AIDS bills have been replaced by top companies’ desire to compete for gay workers.

Schools and the military will be slower going. Teachers fear harassment or retribution if they support student efforts to form “gay-straight alliances” (even so, there are some 1,700 pro-tolerance clubs in 50 states). The Pentagon will argue that “unit cohesion” will suffer if gays are openly tolerated in the military. Part of the underlying legal basis for the armed services’ restrictive “don’t ask, don’t tell” policy, a federal anti-sodomy law, is likely to be struck down. Still, the courts are very reluctant to interfere with the military.

Despite the challenges ahead, the alliance of gay lawyers who have been working for two decades to overturn discriminatory laws can feel the ground shifting beneath their feet. Last week Susan Sommer, the supervising attorney at the Lambda Legal Defense and Education Fund, went to an early court hearing in a case aimed at overturning New Jersey’s ban on gay marriages. The U.S. Supreme Court’s ruling in Lawrence “didn’t come up,” she noted. “But now I feel like when I walk in the courtroom I’ve got a powerful symbol on our side, the ringing words of Justice Kennedy that Bowers v. Hardwick had demeaned gay people.”

Lambda is trying to soften up public opinion with town-hall meetings designed to show that gay families are good for the community. “The town halls we’re doing tell people, ‘Hey, we’re just like anyone else—a middle-class, hometown suburban couple that’s been called boring’,” says Cindy Meneghin, 45, who with her partner, Maureen Kilian, also 45, and their two children, Joshua, 10, and Sarah, 8, are suing to be recognized as a legal family in New Jersey. “You can’t look at our beautiful, charming kids and not notice that we’re a family, and the myths start tumbling down. What we’ve found is that people get to know us as people with families and kids, that I coach soccer and take pictures, and Maureen is the best dessert maker in town, and, oh yes, Maureen and Cindy are a gay couple.”

At their home in the liberal Boston enclave of Jamaica Plain, Julie and Hillary Goodridge (who adopted the common last name from Hillary’s grandmother because it sounded “positive”) have found acceptance—except for the time a bunch of high-school kids urinated on their car and yelled “Dyke!” Last week Julie sat down with their daughter, Annie, to explain the Lawrence decision. “I had to do it without talking about sodomy,” said Julie. “I mean, she’s only 7 and three quarters!” “The Supreme Court made an important decision yesterday,” Julie told Annie. “They said it was OK for lesbians and gays to love each other.” “That’s good,” said Annie. But she still wants her
parents to be married.

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