Gay Rights Go to Court

Sodomy laws, same-sex marriage, and the future of homosexual rights.

The U.S. Supreme Court is set to rule, for the second time in less than 20 years, on the constitutionality of state laws prohibiting consensual sodomy. At the same time, the Supreme Judicial Court in Massachusetts is weighing a lawsuit that seeks to legalize same-sex marriages, claiming that marriage to the partner of one's choice is "protected by the liberty and due process clauses of the Massachusetts Constitution." The two cases and the political response to them illustrate both the progress our culture has made toward equality for gay men and women and the hurdles that remain.

The striking thing about the Supreme Court case Lawrence v. Texas is the very thought that in the United States in the 21st century, you can get arrested for having sex in your bedroom with a consenting adult. The two men challenging the law, John Lawrence and Tyron Gardner, were briefly jailed and fined $200 each after being caught flagrante delicto in Lawrence's unlocked apartment, which the police entered on a neighbor's false tip about an intruder.

The state's position, in a nutshell, is that it has the right to ban homosexual acts because it considers them immoral. Significantly, the Bush Justice Department has not taken a stand on Lawrence v. Texas. Several socially conservative groups, however, have weighed in to affirm that the government does indeed belong in our bedrooms. A joint brief from the Family Research Council and Focus on the Family states that the Texas law is "a reasonable means of promoting and protecting marriage—the union of a man and a woman."

Which brings us to the far more complex issue of same-sex marriage, raised in a Massachusetts lawsuit by seven gay and lesbian couples seeking the right to marry. How the court will rule is anybody's guess, but in this instance the decision is unlikely to settle the issue. State lawmakers are already gearing up to pass a constitutional amendment stating that "only the union of one man and one woman shall be valid or recognized as a marriage in Massachusetts," which would supercede a court ruling for the plaintiffs. If it passes, it would make Massachusetts the 37th state to outlaw same-sex marriage.

Most secular arguments against gay marriage have been masterfully demolished by gay writers such as Andrew Sullivan and Jonathan Rauch. The most prominent of these arguments—that marriage is defined by its procreative nature—is belied by the fact that heterosexual spouses who are infertile or childless by choice have the same legal rights as married couples with children.

In a 2002 debate with Sullivan in National Review, Hudson Institute fellow Stanley Kurtz argued that marriage is based on sexual difference and complementary gender roles, and will thus be irreparably damaged by the legalization of same-sex unions. Kurtz's view of sexual complementarity is stock conservative dogma: Men want sex, women want love and family, and marriage is a bargain in which men trade commitment and financial support for sex and women domesticate men.

Yet this 1950s view of marriage is no longer incorporated into American family law, which in most states is now formally gender-neutral. In practice, courts still tend to favor women as custodial parents and to stress men's financial obligations, but for better or worse, this tendency is unlikely to be affected by the legalization of same-sex marriage. While Kurtz argues that growing acceptance of gay rights is closely related to "no-strings heterosexual hookups and 50 percent divorce rates," public opinion trends suggest otherwise. Anti-gay attitudes remained largely unchanged throughout the 1970s and '80s, with about three-quarters of Americans agreeing that sexual relations between adults of the same sex are "always wrong." That figure began to decline in the 1990s—the same period when attitudes toward divorce and casual sex grew more conservative.

Another common argument is that redefining marriage is a slippery slope: Legalize same-sex unions, and who's to say that polygamy isn't next? (While opponents of gay marriage stress that heterosexuality is a universal characteristic of marriage, they tend to evade the fact that polygamous marriage has existed throughout history.) One major difference is that legalizing polygamy would alter the nature of all marriages by creating the option of taking a second or third spouse. By contrast, allowing gays to marry does not tangibly affect heterosexual couples. As Rauch has argued, the liberalization of divorce laws has altered marriage far more than the legalization of gay unions ever could.

Many people feel that male/female complementarity gives a special value to heterosexual unions. They have a right to this view, just as Christians have a right to believe that people who accept Jesus as their savior have a special relationship with God. What they shouldn't have is the right to impose their belief on others.

For now, the weakness of the arguments against gay marriage has done little to diminish the strength of popular opposition. Even today, 50 percent to 60 percent of Americans believe that a sexual relationship between consenting adults of the same sex is always wrong; fewer than 30 percent unequivocally say that it's "not wrong." At least 60 percent oppose allowing gay and lesbian couples to marry. While four out of five Americans would describe an unwed mother and her children as a "family," fewer than one in three would apply the term to a gay or lesbian couple raising children.

At the same time, Americans overwhelmingly believe that gay men and women should have equal opportunity in employment. Only a third or so think gays should not be hired as schoolteachers, and close to 60 percent say they would vote for a gay presidential candidate. It seems that many endorse equality for gays as individuals but not for gay relationships. This mind-set is reflected in popular movies and television shows such as Will and Grace, with sympathetic homosexual characters who are almost never shown in romantic situations.

To make the picture even more complicated, Americans now favor, by a margin of about 55 percent to 37 percent, marriage-like rights for same-sex partners in such areas as inheritance, pension benefits, and health insurance; a slim majority believes gay couples should be allowed to adopt, and close to half favor legal protections for gay domestic partnerships. The stumbling block seems to be the word marriage.

At present, gay rights groups tend to focus on practical protections for domestic partnerships. The best prospect for same-sex marriage is Sullivan's vision of state-by-state experiments gradually leading to broader acceptance. Paradoxically, the 1996 Defense of Marriage Act, which allows states to refuse recognition to same-sex marriages performed in other states—a law that is understandably anathema to gay rights activists—may actually facilitate such experiments. Forcing conservative Southern states to recognize same-sex marriages performed in Massachusetts is a sure way to galvanize passionate opposition.

Likewise, quite a few abortion rights supporters now believe that the federalization of abortion rights via Roe v. Wade was a mistake that gave the right-to-life movement a potent shot in the arm, and that the pro-choice cause would have been better served by state-by-state liberalization of abortion.

Ultimately, perhaps, a true cultural shift will be brought about by the increased visibility of the human face of same-sex relationships. It was the testimony of Sharon Smith, the partner of San Francisco dog-mauling victim Diane Whipple, that persuaded the California legislature to allow domestic partners to file wrongful death lawsuits on behalf of a deceased partner. What emerged from Smith's statements, in court and in the media, was a compelling portrait of the two women as a couple like any other.

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.