More Marriage-Go-Round.

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First, a celebratory moment as Michael Demmons, the DiscountBlogger, shares a photo and some thoughts on his wedding in Ottawa.

Now back to the culture wars. While Republicans face a problem catering to the anti-gays in their party without seeming so intolerant as to alienate the independents, the Democrats don't quite have it all figured out, either. As Deborah Orin writes in the New York Post:

Key Dems just don't want to, er, commit themselves and now Bill Clinton's office won't even say whether he still backs the "Defense of Marriage Act" he signed into law in 1996 - it says wedlock means a union between a man and a woman. Hillary (D-N.Y.) won't take a stand on the law her husband signed, nor will Sen. Chuck Schumer (D-N.Y.) even though he voted for it back in 1996.

And speaking of DOMA, this story from The Telegraph (in New Hampshire) reminds us that:

Of the five Democratic candidates [for president] then in Congress, three voted for the measure: Rep. Richard A. Gephardt of Missouri and Sens. Joe Lieberman of Connecticut and Bob Graham of Florida. Sen. John F. Kerry of Massachusetts opposed it, but said at the time he also was against same-sex marriage. --

When Democratic contenders roundly praised the Supreme Court ruling last week, the issue of gay marriage was conspicuously absent. Lieberman's statement was typical: "The court,"" he said, "moved us a step closer to giving gays and lesbians a full, fair place in our society."" But he did not say what the next step should be. A spokesman declined to elaborate.

Not exactly profiles in courage.

Sodomy Potpourri.

For the legally minded, the National Law Journal offers some in-depth analysis of the likely ramifications of the Lawrence decision.

By the way, it's not just gays who fell prey to sodomy laws. The Roanoke Times reports that:

For the past 5-1/2 years, Trey Gregory has lived the life of a convicted felon who is not in prison, yet not entirely free. He cannot vote. He must list his crime on job applications. He cannot buy a gun for his son because firearms are not allowed in the home of a felon. Gregory's crime? He and a woman engaged in consensual oral sex in the privacy of his home.

And they say "Virginia is for lovers!"

IGF contributing author Rick Rosendall wonders why some gays can't admit we're winning.

And columnist Larry Daughtrey in The Tennessean ponders what Bill Frist's recent outburst is all about when "The spokesman for the get-government-out-of-our-lives party wanted to get government into the bedroom, cutting off that bunch of known liberals at the Supreme Court before they legalize even more sodomy."

Meanwhile, Neil Steinberg's column in the Chicago Sun-Times only appears to be about James Joyce. Stay with it.

Recent Postings

07/06/03 - 07/12/03

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Let’s Admit We’re Winning

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Originally published July 4, 2003, in The Washington Blade.

Inevitably, somebody had to rain on our victory parade, in the middle of Stonewall Sunday. I refer not to Senate Majority Leader Bill Frist, R-Tenn., who endorsed the Let's Blame Gays for Our Marital Problems Amendment, but to John Rechy, author of the landmark gay novel "City of Night."

In a commentary in the Los Angeles Times, Rechy praises the Supreme Court ruling in Lawrence v. Texas, but then immediately launches into a litany of all the discrimination and indignities and violence endured by gay people during the past thirty years. Refusing to celebrate our monumental victory without griping, he drags gloom and doom into the room like Snoopy sitting on the television set imitating a vulture.

"Without in any way belittling the decency of the justices in their brave opinion," Rechy says as he does it anyway, "some might view the decision as a vastly imperfect apology for the many lives devastated by cruel laws that made possible the myriad humiliations of gay people, the verbal assaults and screams of 'faggot!' - the muggings, the suicides, the murders...." Well, happy Pride to you, too!

Pardon me, Mr. Rechy, but the news on June 26 was so bad for right wing bigots that Strom Thurmond finally keeled over. As Paddy Chayefsky said to Vanessa Redgrave the night she ranted against "Zionist hoodlums" in accepting an Oscar, "a simple 'thank you' would have sufficed."

Rechy is not the only one among us who won't take yes for an answer. Earlier in June, at a State of the Movement confab in Washington, Matt Foreman of the National Gay and Lesbian Task Force talked as if we were about to be overrun by the radical right. He even discounted the anticipated victory on sodomy laws, saying that the mere removal of a negative was no big deal. Considering that people have lost their jobs and children over it, it's a very big deal, indeed.

As to the increasing apoplexy of the far right, black lesbian activist Mandy Carter got it exactly right when she replied to Foreman that the reason they are so upset is that they know we are winning. Maybe we'll get lucky when the Massachusetts Supreme Judicial Court issues its upcoming marriage ruling, and all the nutty fundamentalists will have a collective Rapture and be sucked into the void.

Pardon my irreverence, but I just got an email from Focus on the Family trying to sell me two videos challenging Darwin's theory of evolution, and I am thinking, Bush is afraid these guys will bolt the party? He should worry that they'll stay. It is hardly in his interest to have the culture war take center stage in his re-election effort.

It is high time that we acknowledge we are winning. This is not to say we have won, despite conservative columnist Jonah Goldberg having so declared. Of course our fight is not over. But as veteran gay activist Frank Kameny says, the tide of history is with us. At last the Supreme Court has upheld our right to liberty and to respect for our relationships. The implications are profound, which is precisely why the right-wing scapegoaters are up in arms.

In San Francisco on the day of the Lawrence ruling, members of a gay American Legion post took down the huge rainbow flag that flies over the Castro District and raised the Stars and Stripes. The only other time this was done was after 9/11, when Mark Bingham died among the heroes of Flight 93. We already knew that the flag flew for us too, but Justice Kennedy and his colleagues have made it official.

There may be no such intersection, but symbolically gay people are turning in growing numbers from Christopher Street onto Main Street. This does not mean that we are abandoning our gay identities, but simply that we are shedding our outsider status. Those who cherish the film noir appeal of cruising windowless bars in warehouse districts are free to indulge themselves. The rest of us can enjoy the sunshine.

As to the so-called "crime against Nature," given that the theocrats are impervious to the evidence and logic refuting this old slander, I can only quote the late Kate Hepburn in "The African Queen": "Nature, Mr. Alnutt, is what we are put in this world to rise above."

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Liberty Weekend.

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As we approach the long Independence Day weekend, let's give a nod to Great Britain. Tony Blair's Labor government proposes to create a civil partnership register for same-sex couples, and Conservative leader Iain Duncan Smith has given his members of parliament a "free vote" on the matter, rather than whipping them into opposition. As one conservative MP writes in the Daily Telegraph, Tories must stop pretending that gay couples don't exist. Bill Frist take note.

Writing in the Washington Post, liberal Harold Meyerson takes aim at what he terms the Grand Old Gay Bashers,
but more thoughtfully than most Bush-bashers. He notes:

Of course, plenty of Republicans welcomed last week's decision (beginning, I suspect, with Vice President Cheney). -- Plenty of Republicans sicken at the hatreds expressed by their legislative leaders. But plenty or not, try to find a national Republican who speaks out for equality of sexual orientation or condemns the expressions of bias.

Let's see how big a hole Republicans are willing to dig themselves into, or whether they'll realize that appeals to fear and prejudice aren't going to be a winning strategy in the long run.

On the other hand, it was Bill Clinton who signed the Defense of Marriage Act and then bragged about it on radio spots airing in conservative markets.

The AP reports in a story headlined Bush: Gay Marriage Ban May Be Too Soon that the White House is pulling back from the support given to the anti-gay amendment by the Senate majority leader. A welcome development, if you're into reading tea leaves and making guesses about what's being talked about in the (real) West Wing.

Finally, Chicago Sun-Times columnist Mark Brown writes Gay marriage is in our future, like it or not. He opines:

Most people are still opposed to giving a same-sex couple the same legal rights as a marriage between a man and a woman, but those beliefs are evolving. It won't happen quickly, and if anyone tries to move too quickly, there will be a backlash. There already is a backlash. "

Even as I pulled my kids out of the Boy Scouts for discriminating against gays, I couldn't accept the concept of gay marriage. It was the gut reaction of a recovering homophobe. But as time keeps passing, I no longer see any reason to be afraid. Gay and lesbian couples already have loving partnerships that qualify as marriage by every standard other than the one we have codified into law. They deserve the legal protections the rest of expect from marriage as it relates to property rights, health care and other issues.

And that's how progress gets made, one pundit at a time. Happy 4th of July!

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Springfield vs. Shelbyville.

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Johah Goldberg has an engaging piece at the National Review site titled Springfield vs. Shelbyville: Gay marriage, incest, and The Simpsons. In the end, he endorses a federalist approach -- don't bar states from recognizing gay marriages, but don't force them to recognize them, either, or risk a huge backlash that will reinvigorate the religious right. It's a compromise that Andrew Sullivan says he'd be happy to live with.

Past or Future?

A Reuters story, headlined "White House Mum on Amendment Banning Gay Marriage," reports President Bush has stopped short of endorsing the anti-gay Federal Marriage Amendment after Senate Majority Leader Bill Frist said he "absolutely" supports altering the Constitution to prevent states from recognizing same-sex marriages. In the words of White House spokesman Ari Fleischer:

"The president believes that marriage is an institution between a man and a woman," Fleischer told reporters. "We have a law on the books right now that ... passed with massive, overwhelming bipartisan majorities in 1996. The president supports that legislation and that's where he stands right now."

Who knows if this is a coordinated strategy to have Frist placate the religious right while Bush stands back, but it apparently signals that the prestige of the presidency won't be deployed to rewrite the Constitution to please the "wingnuts" (at least for now).

According to a USA Today/CNN/Gallup poll:
55% of American said same-sex marriages should NOT be recognized with the same rights as traditional marriages between a man and a woman, while 39% said they should be valid. When the same question was asked in March 1996, 68% said homosexual marriages should not be recognized by law, while 27% believed they should.

But significantly, 61% ofAmericans 18 to 29 years old said same-sex marriages should be valid. So tying the party to a constitutional amendment that cements a gay-marriage ban for the remainder of our lifetimes could push away the upcoming generation of voters that the GOP needs to attract. Once again, the choice is a politics of the past that appeals to the most reactionary forces in the GOP, or to embrace a future-directed politics built upon the foundation of individual liberty that we'll celebrate this July 4th weekend.

Safire's Sure-Fire Advice.

New York Times columnist William Safire, who has a conservative foreign policy bent but leans libertarian on social issues, writes:

Rather than wring our hands and cry "abomination!", believers in family values should take up the challenge and repair our own house. Why do too many Americans derogate as losers those parents who put family ahead of career, or smack their lips reading about celebrities who switch spouses for fun? Why do we turn to the government for succor, to movie porn and violence for sex and thrills, to the Internet for companionship, to the restaurant for Thanksgiving dinner -- when those functions are the ties that bind families?

I used to fret about same-sex marriage. Maybe competition from responsible gays would revive opposite-sex marriage.

Fair-minded former critics of letting us wed are starting to come around, and more will do so. Their support will be needed.

Whoa! Canada!

The Washington Post reports that Canada's recognizing same-sex marriages and decriminalizing small amounts of marijuana has some U.S. conservatives singing (to the tune of South Park's "Blame Canada" song):

"It seems like everything went wrong / Since Canada came along."

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A Brief Guide to Lawrence

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First published July 2, 2003, in the Chicago Free Press.

It was closer than you think. Although the U.S. Supreme Court declared Texas' (and three other states') same-sex sodomy law unconstitutional by 6 to 3, it was by a narrower 5 to 4 majority that the Court declared the heterosexual-inclusive sodomy laws of nine other states unconstitutional and reversed the opprobrious 1986 Bowers v Hardwick decision upholding Georgia's sodomy law.

And the Court reversed Bowers only because Justice Anthony Kennedy, who had written an important gay-supportive, equal protection opinion in Romer v Evans, passed by his earlier argument, which would have been sufficient to strike down the Texas law, to reconsider Bowers, find it deficient in virtually every respect, and declare that Bowers failed to recognize - and the Texas law violated - a right to liberty inherent in the Due Process Clause of the 14th Amendment.

In sentences that will become famous, Kennedy wrote:

  • "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spacial and more transcendent dimension."
  • "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."
  • "The petitioners are entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime."

Dissenting Justice Antonin Scalia, who is clearly the Vatican's man on the Supreme Court, ranted impotently and (since we won) amusingly about "homosexual sodomy," "homosexual activists," "the so-called homosexual agenda," and flamboyantly charged that "the court has taken sides in the culture war."

But Scalia, for all his repute for great legal learning, had nothing to offer by way of arguments except: a) a majority should have a right to force others to obey their moral rules no matter what, and b) allowing "homosexual sodomy" removes the only barrier to homosexual marriage. Is there a genuine state interest in criminalizing same-sex sodomy per se? Scalia offered none.

For the rest, Scalia's dissent consisted of ineffective counter-punching, evasions, misrepresentations, sophistry, sneers and dire predictions. There is an old lawyers' admonition that when you don't have the facts or the law on your side, bang on the table. What Scalia wrote was the judicial equivalent of banging his spoon on his high chair.

Legal reasoning aside, a careful reading of the opinions makes clear that the fundamental difference between the pro-gay majority and the anti-gay minority is the majority's willingness to acknowledge - and take legal account of - the fact that gays and lesbians are types of persons just as heterosexuals are and that sexual orientation is a core aspect of a person's being.

Justice O'Connor, whose concurring opinion, though limited to an equal protection argument, is the best argued and best written, explained the significance of this:

  • "Those harmed by this law are people who have a same-sex sexual orientation and thus are more likely to engage in behavior prohibited by (the Texas law)."
  • "While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas' sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class."
  • "The State cannot single out one identifiable class of citizens for punishment that does not apply to everyone else with moral disapproval as the only asserted state interest for the law."

The difference in approach is signaled by the fact that Kennedy wrote of "homosexual persons," "homosexuals," and "persons who were homosexual." Similarly, O'Connor wrote of "homosexuals," "homosexual persons," "a same-sex sexual orientation," "being homosexual," and even (as above) "gay persons."

By contrast, Scalia wrote almost exclusively of acts: "homosexual sodomy," "homosexual conduct," "consensual sodomy," "homosexual acts," "homosexuality," "sodomy" and "those who engage in homosexual acts."

If the issue of sodomy laws is now settled, can we find anything in this decision for future litigation. Yes, indeed.

"Don't ask, don't tell" and the military's sodomy law are more vulnerable. If neither is quite unconstitutional on the basis of Kennedy's due process argument, they are arguably so under O'Connor's equal protection argument, which Kennedy declared "tenable."

Although O'Connor avoided discussing heterosexual-inclusive sodomy laws like the military's, her argument implies they too would be unconstitutional because of their disparate impact on gays and heterosexuals. Civilian deference to the military has its limits.

Kennedy was canny enough to draw attention to the possibility of gay marriage - without the red flag of naming it - and invite litigation by pointedly leaving the question open, referring to "a personal relationship that, whether or not entitled to formal recognition in the law...."

But the learned Scalia himself opined that O'Connor's reasoning on equal protection grounds "leaves on pretty shaky ground state laws limiting marriage to opposite-sex couples." However that may be, the Defense of Marriage Act is almost surely dead.

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Republicans Must Decide.

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Yes, it's disappointing that Senate Majority Leader Bill Frist, in an effort to firm up the support of the religious-right bloc, has come out in favor of a proposed constitutional amendment to ban states from recognizing gay marriages. As I noted in yesterday's posting, so much for the right of states to pass their own legislation! It's unclear whether Frist and the Republican leadership genuinely intend to pursue such a divisive strategy, or whether it's just lip service. But it shows the GOP still believes it must kowtow to the most reactionary elements in America.

Of the six justices who voted to overturn the Texas law criminalizing sodomy, four were Republicans, appointed by Republican presidents. This is the other face of the GOP -- moderate, live-and-let live, opposed to government intrusion. At some point -- and it may well be the gay marriage fight -- it's possible the GOP coalition of the libertarian-minded and the religious-right theocrats will implode. Or maybe the theocratic faction will continue to decline as a bloc and the leadership will feel freer to ignore its threats. But abandoning the GOP to the "wingnuts," as some progressives argue, is just the kind of self-defeating politics that the left too often specializes in.

Addendum: The Federal Marriage Amendment was introduced in Congress by a bi-partisan group of co-sponsors, notes the Log Cabin Republicans, and "even liberal icons like Senator Ted Kennedy (D-MA) and Senator Hillary Rodham Clinton (D-NY) oppose gay marriage." True, but perhaps not the the degree of muddling up the Constitution (I hope!).

Changing Times.

A nice bit of analysis on why the Lawrence decision won't be a boon to the far right is provided by Jacob Levy over at The Volokh Conspiracy website. Surprise, the decision might even help the GOP since sodomy laws were:

the most absurd and embarrassing face of social-cultural conservatism -- absurd always, and embarrassingly for the past several years, and increasingly embarrassing as time went on. For social-cultural conservative Republicans to be able to appeal past their base, they couldn't defend the laws. For them to avoid alienating their base, they couldn't attack them. For social-cultural conservatism to avoid looking increasingly anachronistic and foolish, sodomy laws had to be taken off the table and the subject had to be changed to other fights.

Of course, it now appears that one of those "other fights" is gay marriage, and it won't be pretty.

Recent Postings

06/22/03 - 06/28/03

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Set Him Free.

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For those who think sodomy laws never really hurt anyone, here's an example of how the Lawrence ruling is already making a different. As the Washington Post reports, the Supreme Court on Friday vacated the sodomy conviction of a Kansas teenager who received a 17-year sentence for having consensual sex with a younger teenage boy. Matthew R. Limon had just turned 18 when the relationship with a 14-year old took place. Had his partner been a girl, the sentence would have been no longer than 15 months under Kansas law -- which has a "Romeo and Juliet" exception for opposite-sex teens -- instead of the 17 years that Limon received.

Matt Limon has been in jail for two years. The ACLU is now asking the Kansas court simply to order his release and put an end to this miscarriage of justice.

Hypocrisy Alert.

Many conservative officials and groups denounced the Lawrence ruling as a violation of states' rights. For example, Virginia Attorney General Jerry Kilgore had this to say on the overturning of his state's sodomy law:

"I disagree with the ruling and am always disappointed when a court undermines Virginia's right to pass legislation that reflects the views and values of our citizens."

Right-wing organizations taking the states' rights line include (and thanks to IGF's Mike Airhart for this list and links): the American Family Association, Concerned Women for America, Exodus International,
the Family Research Council, and the Liberty Counsel.

But many of those who favor the right of states to pass laws criminalizing same-sex relations are already supporting (or expected to support) a proposed amendment to the U.S. Constitution that would bar all states from recognizing same-sex marriages, or perhaps even civil unions -- despite the will of a majority of the state's citizenry and the desire of the states' legislatures. So much for states' rights when the shoe is on the other foot!
Stephen H. Miller

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Set Him Free.

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For those who think sodomy laws never really hurt anyone, here's an example of how the Lawrence ruling is already making a different. As the Washington Post reports, the Supreme Court on Friday vacated the sodomy conviction of a Kansas teenager who received a 17-year sentence for having consensual sex with a younger teenage boy. Matthew R. Limon had just turned 18 when the relationship with a 14-year old took place. Had his partner been a girl, the sentence would have been no longer than 15 months under Kansas law -- which has a "Romeo and Juliet" exception for opposite-sex teens -- instead of the 17 years that Limon received.

Matt Limon has been in jail for two years. The ACLU is now asking the Kansas court simply to order his release and put an end to this miscarriage of justice.

Hypocrisy Alert.

Many conservative officials and groups denounced the Lawrence ruling as a violation of states' rights. For example, Virginia Attorney General Jerry Kilgore had this to say on the overturning of his state's sodomy law:

"I disagree with the ruling and am always disappointed when a court undermines Virginia's right to pass legislation that reflects the views and values of our citizens."

Right-wing organizations taking the states' rights line include (and thanks to IGF's Mike Airhart for this list and links): the American Family Association, Concerned Women for America, Exodus International,
the Family Research Council, and the Liberty Counsel.

But many of those who favor the right of states to pass laws criminalizing same-sex relations are already supporting (or expected to support) a proposed amendment to the U.S. Constitution that would bar all states from recognizing same-sex marriages, or perhaps even civil unions -- despite the will of a majority of the state's citizenry and the desire of the states' legislatures. So much for states' rights when the shoe is on the other foot!

A Victory for Liberty.

Don't think that yesterday's landmark Supreme Court ruling overturning sodomy laws is just a victory for gay folks. This Cato Institute press release calls it a "victory for the pursuit of happiness" for all Americans. Says Cato's Roger Pilon:

I'm delighted that the Supreme Court did today what it should do in all cases - stand for liberty, against majoritarian tyranny. Today's decision is not a victory for alternative lifestyles alone. Because it has far-reaching implications, it is a victory for liberty itself and hence for everyone, gay and straight alike.

The state of Texas argued that its inherent police power authorized it to police morals. But the state has no such authority. State police power is meant to secure rights. Plaintiffs Lawrence and Garner were violating no one's rights. What they were doing was no more the business of the state than it was of any neighbor.

Moreover, the Fourteenth Amendment recognizes rights against such state actions. In reaching that conclusion today, the Court may have taken the first step toward a Fourteenth Amendment jurisprudence that is rooted at last in the amendment's first principles.

Cato, a libertarian-mined policy institute, filed a legal brief that was cited twice by Justice Kennedy in his majority decision.

Gearing Up to Strike Back?

The hard right isn't going to take this lying down. Along with Justice Scalia, religious right groups are painting the anti-sodomy ruling as part of an offensive for gay marriage. In the words of the Family Research Council:

The radical homosexual lobby will seek to apply the logic, extending a blanket privacy protection over one's choice of sexual partner to one's choice of marital partner as well -- regardless of sex.

Expect to see a renewed push for a constitutional amendment to bar same-sex matrimony.

A Non-Word from the President.

As I predicted, President Bush -- eager not to offend the religious right, but not to seem too close to them, either -- is keeping mum. From the daily press briefing with White House spokesman Ari Fleischer:

Q: And on the Texas sodomy case, does the President believe that gay men have the legal right to have sexual relations in the privacy of their own home?

MR. FLEISCHER: I think on this decision, the administration did not file a brief in this case, unlike in the Michigan case. And this is now a state matter.

Q: So he has no position on this?

MR. FLEISCHER: It's just as I indicated, the administration did not file a brief on this -- as, I think, you know.

He's not touching this with a 10-foot pole! But rightwing activists will attack him anyway for not rallying to their cause.

Scalia Doesn't Like Us.

A letter in the our Mail Bag says that the press truncated and thus distorted Justice Scalia's remark in his dissent as "I have nothing against homosexuals." What Scalia actually wrote was "Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means."

As the letter notes, "In reading Scalia's dissent, it is evident that he has a great deal against homosexuals." Clearly.

Check out all our current letters, and add your own!

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Great Day in the Morning.

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The Supreme Court strikes down sodomy laws! CNN reports on the 6-3 ruling:

The majority opinion, written by Justice Anthony Kennedy, appears to cover similar laws in 12 other states and reverses a 1986 high court ruling upholding sodomy laws. Kennedy wrote that homosexuals have "the full right to engage in private conduct without government intervention." ... "The state cannot demean their existence or control their destiny by making their private sexual conduct a crime," Kennedy wrote.

"The court has largely signed on to the so-called homosexual agenda," growled Justice Scalia, who wrote for the three dissenters who think the state should be allowed to barge into you bedroom in the middle of the night and drag you to prison for engaging in adult, consensual, noncommercial sexual relations. Scalia, AP reports, took the unusual step of reading his dissent from the bench. "The court has taken sides in the culture war," Scalia said, adding that he has "nothing against homosexuals." How nice.

Added benefit: Rick Santorum and his ilk can't keep saying that they're just echoing the Supreme Court when mouthing their bigotry. The new interpretation of the law of the land:

"The central holding of Bowers [v. Hardwick] has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons. ... Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled."

Here's a wonderful observation from the New York Times discussion board. As you read it, keep in mind that Justice Kennedy was a Reagan appointee.

The Ruling.

The full decision is now online. Of the six justices ruling against the Texas sodomy law, five joined Justice Kennedy in overturning Bowers v. Hardwick outright, basing their decision on the Due Process Clause. As Kennedy wrote, "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions."

Justice O'Connor concurred in overturning the Texas law, which applied only to same-sex sodomy, but did not join the Court in overturning Bowers. Basing her concurring judgment instead on the Fourteenth Amendment's Equal Protection Clause, O'Connor would not have ruled on sodomy laws that apply to both homosexuals and heterosexuals (if "neutral both in effect and application"), and instead would have only overturned statutes that targeted homosexuals exclusively. Given that she originally was part of the majority in the Bowers decision, that's not surprising.

O'Connor took pains to note that finding same-sex sodomy laws unconstitutional under the Equal Protection Clause "does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review," and -- in a nod to both military policy and marriage -- wrote: "Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage."

Those battles will continue to be waged on their own terms, but despite O'Connor's caveat today's ruling can't help but raise the legal bar for justifying discriminatory practices against gays and lesbians as "rational" rather than merely based on prejudice. This is a huge victory.

Scalia's Case for Same-Sex Marriage.

In his rage against the overturning of Bowers v. Hardwick, and thus state sodomy statutes, Justice Scalia has managed to deliver a series of strong arguments in favor of same-sex matrimony. He fumes in his dissent to Lawrence, a la Rick Santorum:

"State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bower's validation of laws based on moral choices. Every single one of these laws is called into question by today's decision [overturning Bowers]."

Taking on Justice O'Connor's concurring opinion based on the Equal Protection Clause, he argues that the Texas sodomy statute:

"...does distinguish between the sexes insofar as concerns the partner with whom the sexual acts are performed: men can violate the law only with other men, and women only with other women. But this cannot itself be a denial of equal protection, since it is precisely the same distinction regarding partner that is drawn in state laws prohibiting marriage with someone of the same sex while permitting marriage with someone of the opposite sex."

And, he adds for good measure, "This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples."

So Scalia thinks overturning Bowers opens the way to gay marriage. But could this be meant as ammunition in the right's push for a constitutional amendment barring same-sex marriage?

Recent Postings

06/15/03 - 06/21/03

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Marriage-Go-Round.

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The legalization of same-sex marriages in Canada, plus impending legal decisions from Massachusetts and New Jersey regarding same-sex couples seeking to wed, puts marriage front and center on the Culture War front -- even as we await the Supreme Court's ruling on whether state sodomy laws that outlaw mere sexual relations between gay partners are constitutionally permissible.

Peter Steinfels, who covers the religion beat for the New York Times, traces some of the fault lines in the marriage debate (at least among the non-wackos in the religious community) in A Too-Hot Topic. Among others, he quotes David Blankenhorn, director of the Institute for American Values, who remarks: "People who haven't had much positive to say about marriage are suddenly enthusiastic, as long
you put the words 'same sex' in front of it."

True, to some extent. But "Gay marriage isn't a repudiation of the values conservatives prize. It's an affirmation," writes syndicated columnist Steve Chapman in Embracing Age-Old Monogamy, via the Chicago Tribune.

Over at the libertarian-minded Reason magazine, Cathy Young opines in Gay Rights Go To Court that:

Until attitudes change, gays have a difficult road to travel. There will be clear-cut victories for human dignity, freedom, and privacy, such as the likely demise of sodomy laws. And there will be complicated and frustrating compromises on issues like marriage.

Well, no one ever said life was meant to be easy.

Equal Time.

Having noted a column over at Tech Central Station that defended the none-too gay friendly views of Sen. Rick Santorum, the Tech Central folks point out they've also run several pieces critical of Santorum, including Democratic Plant
("The only explanation") by James Pinkerton, and
Information Sexternalities ("It's not like incest at all") by James D. Miller. Plus lots of other interesting views on politics and culture with a pro-liberty streak make this site worth checking out.

Internally Conflicted

I missed this, but andrewsullivan.com pointed out a Washington Times op-ed by conservative commentator Jonah Golberg that offered this observation:

Earlier this month, Attorney General John Ashcroft reportedly tried to cancel a scheduled Gay Pride Month celebration at the Department of Justice for lesbian and gay employees. He failed. Despite pressure from social conservative activists, DOJ reversed course in the face of protests from gay groups and a sympathetic media (and, probably, pressure from the White House).

When the most famous and powerful member of the Religious Right in the U.S. government can't stop a gay pride event in his own office building, held by his own employees, you know that social conservatives are losing this fight.

It's too soon to declare victory and the looming marriage battle is sure to be tumultuous -- but that the trend of history is toward greater freedom can't be denied.
--Stephen H. Miller

Recent Postings

06/15/03 - 06/21/03

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