On Law: The Prospects for Gay Marriage

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WASHINGTON (UPI) — The landmark Supreme Court ruling last month giving homosexual adults the right to have sex in private without government interference will not lead to a similar high court ruling in favor of gay marriage.

It’s fundamental.


In Lawrence vs. Texas, the issue was whether adults, not just homosexuals, can engage in the sexual acts of their choice in private. A 6-3 Supreme Court majority said they can, but the key word in that phrase is “private.”

Marriage, on the other hand, is a public event requiring state approval before it can take place.

The two issues just aren’t comparable.

Besides, the public appears to be more than ready to accept one reality — that adults can do what they want behind closed doors — but still appears to be deeply divided over the issue of same-sex marriage.

The results of a recent Harris Poll on the popularity of several last term’s controversial Supreme Court decisions bear that out.

The poll, conducted July 14-20 with 2,215 adults nationwide, found that:

*A 72-to-19 percent majority of respondents agrees with the decision in Lawrence vs. Texas that “it is not illegal for consenting adults to have homosexual sex in their own homes.”

*A 76-to-19 percent majority disagrees with the decision in Grutter vs. Bolliinger that “a university is allowed to use race as one of several factors when deciding whom to admit.”

*And a 48-to-38 plurality agrees with the decision in Wiggins vs. Smith that “a defendant accused of murder should not be convicted if he does not have a competent lawyer to defend him.”

The political popularity of each decision can be gauged by the public reaction to it.

Many groups are still trying to figure out ways to get around the seemingly unpopular affirmative action decision in Grutter, including state referenda and further court challenges.

The public is probably much less aware of Wiggins, but there has been virtually no outcry over its outcome.

Similarly, the public appears to have accepted the decision in Lawrence, so much so that the public debate has moved rapidly beyond sex in private to gay marriage.

Even the Vatican and the White House are weighing in — in case you are unaware of the positions of those two distinguished institutions on gay marriage, both are against it.

There has also been plenty of media speculation that the decision in Lawrence may lead to the legalization of gay marriage.

Nonsense. Gay marriage may be inevitable, but that particular Supreme Court decision will not bring it on, unless you count the ruling’s influence on public perception.

In writing the majority opinion, Justice Anthony Kennedy tried to seal off the case from too many aftershocks.

“The present case does not involve minors,” Kennedy said in his often-eloquent opinion. “It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. 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. Their right to liberty under the due process clause gives them the full right to engage in their conduct without intervention of the government.”

In case you missed the sentence, let’s reiterate: The decision in Lawrence “does not involve public conduct or … whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”

In dissent, Justice Antonin Scalia predicted, correctly I think, that Lawrence would have a broad effect on a range of laws that try to regulate the sex act, such as state bans on fornication, adultery or masturbation.

Where Scalia erred, however, was in saying that Lawrence would lead to the legalization of gay marriage.

“One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion,” Scalia said. “The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts — and may legislate accordingly. The (Supreme) Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian government has chosen not to appeal) … At the end of its opinion — after having laid waste the foundations of our rational-basis jurisprudence — the court says that the present case ‘does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.’ … Do not believe it.”

Time will tell, of course, whether Kennedy or Scalia is right.

Some judges might use Lawrence to try to force gay marriage down an unwilling public’s throat, but the higher courts, including the Supreme Court, won’t let them get away with it.

Ironically, if Lawrence had been decided under the narrower grounds of equal protection under the law — in the 14th Amendment — instead of the broader grounds of a liberty and privacy interest implicit in the due process, or fair treatment, guarantee of that amendment, gay marriage legalization might have been the natural progeny of the Texas case.

But as things stand now, Lawrence will not lead to gay marriage. Something else will.

And a little 1997 federal law called the Defense of Marriage Act, signed into law by then President Bill Clinton, will not stop it.

DOMA purports to do two things: It gives the states the power to refuse to recognize gay marriages performed in other states; and it defines “marriage” as a heterosexual union and a “spouse” as a husband and wife.

The problem with DOMA is it probably won’t survive a good constitutional challenge in the federal courts.

Article IV, section 1 of the Constitution contains the “full faith and credit” clause:

“Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.”

Some scholars argue that the second sentence gives Congress the power to enact DOMA. To quote Scalia, “Do not believe it.”

Congress can regulate the manner, but not the content of those areas in which the states are constitutionally supreme. Among those areas are the marriage laws.

And if sooner or later some state court or legislature — keep your eye on Massachusetts — makes gay marriage in that state legal, there are constitutional reasons under the “full faith and credit” clause why that marriage must be recognized in every other state.

Frankly, I don’t view the prospect of legalized gay marriage with dread. I think the idea of marriage, or at least a civil union, for that segment of our population is only fair for a number of reasons — including insurance, hospital visitation and child rearing.

It has nothing to do with me and my family’s religious tradition, which recognizes marriage as a sacrament between two people, with clergy and the state as mere bystanders.

Besides, gay people should have to go through divorce like the rest of us.

”’Mike Kirkland is UPI’s senior legal affairs correspondent, and has covered the Supreme Court and other parts of the legal community since 1993.”’

Copyright 2003 by United Press International. All rights reserved.