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Debate on marriage and more looms
Ruling directly points to another clash in nation’s culture war
ANALYSIS
By David Von Drehle
THE WASHINGTON POST
WASHINGTON, June 27 — The Supreme Court ruling to strike down the nation’s anti-sodomy laws combined two of the most contentious issues on the political landscape by grounding the liberty of gays in the same legal turf that sustains the right to abortion — and it directly points to yet another clash in the culture war: a fight over gay marriage.
THE DECISION did not spell out what this could mean for laws banning gay marriage, gay adoption and related controversies. But dissenting Justice Antonin Scalia warned from the bench that the constitutional grounds for maintaining those prohibitions are now gone.
“It is clear from this that the Court has taken sides in the culture war,” Scalia declared, taking the unusual step of reading his dissent from the bench. He savaged the passing statement by the majority that the sodomy law decision had nothing to do with the gay marriage issue. “Do not believe it,” he warned.
NEW VIEW OF MORALITY
Lawrence v. Texas could have implications far beyond the closed doors of private homes. In an unexpectedly large step, the court said traditional morality is no justification for making legal distinctions among sexual behaviors of consenting adults. “The fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,” Justice Anthony M. Kennedy wrote, quoting approvingly from his colleague Justice John Paul Stevens.
And in at least one earlier precedent, the realm of private, intimate life has been defined by the Supreme Court to include “marriage ... family relationships [and] child rearing.”
At the same time, marriage and adoption are more public matters than the intimacies the court was dealing with in the Texas case. Other grounds, beyond morals alone, might be found to justify continuing those prohibitions if states choose to do so.
That’s the next fight.
It could come quickly. Gay rights lawyers recently filed suit in federal court challenging new wording in Nebraska’s constitution banning gay marriage; yesterday’s decision should strengthen their case. According to the Lambda Legal Defense and Education Fund, the decision “begins an entirely new chapter” in the campaign for gay rights, including the right to marry. Executive Director Kevin M. Cathcart stressed the broader impacts of the decision, saying, “This historic civil rights ruling promises real equality to gay people in our relationships, our families and our everyday lives.
Cathcart’s organization plans to take the weekend to hatch strategy and will announce on Monday “its aggressive plan for turning this landmark ruling into a reality.”
Across the cultural divide, Tom Minnery, Focus on the Family’s vice president of public policy, predicted that “if the people have no right to regulate sexuality then ultimately the institution of marriage is in peril, and with it, the welfare of the coming generations of children.”
SURPRISING SCOPE OF OPINION
Many observers had predicted that the court would find very narrow grounds to throw out a Texas law that criminalized sodomy for homosexuals only. After all, with a few notable exceptions, the high court has been reluctant over the past 25 years to write controversial decisions in broad strokes.
The court of the 1950s, ’60s and ’70s — an era shaped by Chief Justice Earl Warren and that legendary builder of liberal majorities, Justice William J. Brennan Jr. — painted with a bold brush on issues ranging from civil rights to school prayer, from capital punishment to abortion. The justices became heroes to many and infuriated many others.
The court of the 1980s, ’90s and today — an era shaped by Chief Justice William H. Rehnquist and the increasingly dominant builder of centrist majorities, Justice Sandra Day O’Connor — has rolled back some of those decisions and shored up others. But the court has generally preferred to hunt for fresh controversies in abstract realms such as federalism and original intent where any outrage stirred up is registered in law review articles, not on billboards.
But the majority opinion in Lawrence went back to the earlier era for its inspiration. Drawing on the 1965 case that found a right to contraception and the 1973 case that found a right to abortion, Kennedy said that the “right to privacy” also applies to homosexuals. “Adults may choose to enter upon this relationship in the confines of their homes and their private lives and still retain their dignity as free persons,” he wrote. “The liberty protected by the Constitution allows homosexual persons the right to make this choice.”
With that, the court overturned a 1986 decision that had rejected the right-to-privacy argument for same-sex relationships. O’Connor voted with the 1986 majority, and she declined to repudiate that position yesterday. But she added a separate, sixth, vote for the new rule that legal distinctions between heterosexual relations and homosexual relations cannot be made on purely moral grounds.
“Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause,” she wrote.
The high court has been reluctant over the past 25 years to write controversial decisions in broad strokes.
Scalia, Rehnquist and Justice Clarence Thomas, in their dissents, said the step, if it was going to be taken, should have been left to the state legislatures. “Were I a member of the Texas legislature, I would vote to repeal” the sodomy law, Thomas wrote.
Legislatures “unlike judges, need not carry things to their logical conclusion,” Scalia noted. They can legalize “private homosexual acts” while continuing to prohibit gay marriage if they wish. “The Court today pretends that it possesses a similar freedom.”
Soon enough, America will find out.
Source: http://www.msnbc.com/news/931895.asp?cp1=1
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