Chicago Tribune

June 22, 2003 Sunday Perspective section

HEADLINE: U.S. lags on gay rights; Supreme Court can help;
Canada verges on sanctioning same-sex marriage, but gays in America the
Neanderthal are subject to laws that can put them in jail for acts committed in
the privacy of their homes, acts that some heterosexuals practice too

By Steve Sanders. Steve Sanders is a law student at the University of
Michigan and a summer associate at Mayer, Brown, Rowe and Maw.

   As Canadian courts and legislators move full speed toward granting marriage
rights to same-sex couples, U.S. courts and lawmakers are debating whether those
same couples can still be arrested, fined and branded as sex offenders.

   Despite our defining traditions of freedom and individual rights, Americans
lag behind most Western countries in understanding and attitudes toward gays.

   And now it has come to this: In a few months, a border between two friendly
nations could mean the difference between a marriage license and a prison
sentence.

   The disparity has less to do with public opinion--most Americans are not
bigots--and more with differences in political and legal culture. Our courts
have yet to settle some fundamental questions: What honest and persuasive
rationale allows some states to continue criminalizing the everyday sexual
practices of millions of Americans, straight or gay? And how much legal equality
are homosexuals entitled to under the Constitution--not just in the bedroom, but
in all aspects of their lives?

   In Lawrence and Garner vs. Texas, the sodomy case on which it could rule as
early as Monday, our Supreme Court has the chance to answer those questions.

   But will it?

   The suit was brought by two Houston men arrested while having sex in a
private home. The case turns on two principles of the Constitution's 14th
Amendment: One is that government may not deprive any person of liberty without
"due process of law," and the other demands that states give everyone "equal
protection of the laws."

   Either principle could doom the Texas sodomy law. But they have different
long-run consequences for individual liberties and gay rights.

   The due process clause has been the basis for the court's landmark decisions
on contraception and abortion. While these cases are attacked by conservatives
for their expansive view of liberty, they recognize fundamental rights of
privacy and autonomy that most Americans take for granted.

   In 1986, the justices declined to expand the bounds of sexual privacy in a
gay man's challenge to Georgia's sodomy law in Bowers vs. Hardwick. But the late
Justice Byron White's opinion in Bowers has never won much respect among judges
and scholars because it defined the liberty at stake so narrowly.

   Instead of considering whether all Americans should expect freedom from
government bedroom snoopers, White simply smirked at the notion that gays had a
constitutional right to engage in certain sex acts.

   Only two justices from Bowers case's 5-4 majority remain on the court. More
important, times have changed. Public attitudes about gays are better informed
and more positive than in 1986. Of the 24 sodomy laws on the books when Bowers
was decided, 11 have been repealed by legislators or struck down by state
judges. Illinois hasn't had a sodomy law since 1962.

   And it's important to remember that most sodomy laws define acts, not
people--in nine of the 13 states that still have them, they apply to
heterosexuals as well.

   Despite its instinct to stick by precedent, the Supreme Court occasionally
recognizes that time has rendered an old decision unworkable and unjust. So, it
is conceivable the justices will use Lawrence to overturn Bowers and declare
sodomy laws an archaic infringement on fundamental liberties.

   While the due process clause is concerned with liberty, equal protection
doctrine probes a law's motives. It gives life to the idea that courts serve as
a check on the tyranny of majorities. Because the Texas sodomy law punishes only
homosexuals, the court could settle a question it has evaded in the past: Just
how much equality does the Constitution give gays and lesbians?

   Texas defends its sodomy law on the basis of "public morality" and "promoting
family values." But this is laughable. Taboos on gay sex may rest on centuries
of dogma and ignorance, but Texas passed its homosexual conduct statute just 30
years ago--at the same time it was repealing laws against heterosexual sodomy,
fornication and adultery.

   This odd moral reasoning--enlightened permissiveness for straights, continued
punishment for gays--mocks any notion the Texas law serves a legitimate public
purpose. It is simply an expression of disdain for homosexuals and therefore
violates the equal protection clause.

   The Supreme Court's equal protection rulings have recognized certain legacies
of discrimination. For example, judges are expected to give searching scrutiny
when a law or government action is motivated by race or ethnicity, say, for
example, the racial gerrymandering of a legislative district.

   Similarly, government must provide an exceedingly persuasive reason when it
discriminates on the basis of gender--for example, funding an all-male military
academy. More often than not, the government loses these cases, as courts find
the underlying policies merely codify prejudices and stereotypes.

   By contrast, federal and state governments overtly discriminate against gays
in areas such as marriage, military service and sodomy, yet the Supreme Court
has rarely been willing to find anything that offends the Constitution's promise
of equality.

   In 1996, the justices in Romer vs. Evans did overturn a Colorado ballot
initiative that would have imposed unique political barriers to bar gays from
seeking laws against discrimination in private settings such as employment.
Imposing a special political disability on an unpopular minority, the court
said, served no legitimate purpose. It only provided evidence of state-sponsored
animus.

   While Romer was an important decision, many lawyers found its reasoning fuzzy
and evasive. And unlike the court's landmark decisions on race and gender, it
announced no enduring legal framework.

   It's time for the justices to declare that, if government continues treating
gays as second-class citizens, it needs some highly persuasive reasons. Laws
disfavoring gays should be scrutinized under a stronger equal protection
standard similar to that for race or gender.

   Such a broad ruling in Lawrence would have dramatic consequences. States
could be forced to prove that denying marriage licenses to same-sex couples
serves some legitimate purpose, rather than simply perpetuating the way things
have always been, or "what the Creator intended"--the same dynamic that doomed
laws against interracial marriage, as well as most policies that once privileged
men over women.

   Legislatures would also be less able to interfere with gay adoption or
domestic partnership, as social conservatives are constantly pestering them to
do.

   The problem with this argument is that almost no one believes the court is
ready for it. Most people don't want to discriminate against gays. Yet the
justices know that most Americans are also not quite ready to give up the flimsy
rationalizations that keep gays out of institutions such as marriage and the
military.

    Lawrence is still likely to accomplish some good. The Texas statute is such
an intellectual and legal embarrassment that it will likely fall. More
venturesomely, the justices might decide to liberate all Americans, gay and
straight, from the absurdity of sodomy laws.

   Still, full legal equality for lesbians and gays will be coming to Canada a
lot sooner than in this country.