SUPREME COURT WATCH

June 2003
		As the Supreme Court's 2002 term came to a close, the high court marked another important chapter in legal history, handing down opinions on cases testing both decades-old laws as well as the limits of new technology in the public domain. Jan Crawford Greenburg, regular NewsHour analyst and Supreme Court reporter for The Chicago Tribune, and Professor Stephen Wermiel of American University's Law School answer your questions on the high court's procedures and the impact of its latest term.

Online NewsHour Special Report: Supreme Court Watch Forum Introduction Are experts surprised by the outcomes of the Texas sodomy law case and the affirmative action case? Isn't this supposed to be a "conservative" court? What is used to determine when a previous U.S. Supreme Court precedent should be overturned? Is it too optimistic to view recent capital punishment opinions issued by the court as part of a broader trend which will see an ongoing judicial reassessment of the application (and possibly eventually constitutionality) of the death penalty? Justice Scalia wrote that the Texas sodomy ruling threatens state laws that ban same-sex marriage. What is your view on that? Would this be privacy or due process or equal protection? What do you view as the most important opinions from this term? Do you see a widening divide between the voices on the court that may prove interesting to watch as the court enters its next term?     The U.S. Supreme Court The Supreme Court Historical Society The Chicago Tribune American University Law School	A NewsHour viewer asks: Justice Scalia wrote that the Texas sodomy ruling threatens state laws (and federal?) that ban same-sex marriage. What is your view on that? Would this be privacy or due process or equal protection? What would be the standard of review? Jan Crawford Greenburg of The Chicago Tribune answers: I think Scalia's opinion was a bit over the top in predicting that Lawrence had left state laws limiting marriage to opposite-sex couples on "pretty shaky grounds." Kennedy made clear in his majority opinion that there are major differences in a state recognizing a relationship and police violating a person's privacy rights in his own home. Kennedy's decision, which rested on privacy grounds, gives states ample room to argue that courts easily can draw a distinction between the government's power to make behavior criminal and its obligation to endorse a particular kind of union. (By the way, I also don't see Lawrence being easily extended to invalidate the military's "don't ask, don't tell" policy, since the court has always analyzed legal questions involving the military along a different track. But we'll see what the courts say: At least one legal challenge to "don't ask, don't tell" already has been filed in federal court in Washington based on the Lawrence decision.) The question of same-sex marriages obviously is one that courts in coming years will be forced to resolve, as gay men and lesbians fight for the same legal recognition of their relationships granted heterosexual couples. Gay rights advocates said the Lawrence decision certainly bolstered their cause, because it said a state's moral choices couldn't justify violating an individual's constitutional rights. As Harvard Law School professor Laurence Tribe told me, you can only "go so far" with arguments that marriage is off the table. "Having marriage, a state can't make that kind of condition available on blatantly discriminatory terms," he said. In her separate, concurring opinion, Justice O'Connor said she thought the sodomy law violated the Equal Protection Clause, which says that people should generally be treated equally by the government. She also distinguished sodomy laws with those banning same-sex marriages, suggesting the latter would not violate the Equal Protection Clause in light of the state's interest in "preserving the traditional institution of marriage." Future legal challenges are likely to emphasize Lawrence's central holding that gays and lesbians are "entitled to respect for our private lives" and have liberty rights guaranteed by the Constitution. But they can make the equal protection argument more strongly, because the court also noted in Lawrence that "equality of treatment is linked in important respects" to the due process right to demand respect for conduct that is protected by the substantive guarantee of liberty. Gay rights advocates have said they will soon begin challenging state laws that prohibit same-sex marriages. One pre-Lawrence challenge now is pending in Massachusetts, where seven homosexual couples filed a lawsuit contending that the state constitution protected their freedom to marry the person of their choosing. Stephen Wermiel of American University Law School answers: Scalia was, I think, engaging in a certain amount of dissenting hyperbole. While the rhetoric of Justice Kennedy's opinion about the treatment of gays in our society is eloquent and at times passionate, in the end it still strikes me as a decision about adult, private consensual sexual activity. It seems to me there is a lot of ground for the court to leap over between saying the government cannot make it a crime for you to engage in sexual fulfillment in private with another willing adult and saying governments must recognize the legal status of gay couples and provide those relationships the full protection of the benefits and laws of society. I think Justice Kennedy could easily believe he is being a traditionalist by saying 1) the government should stay out of the bedroom when it comes to adult, consensual sex, and 2) marriage is between heterosexuals. Still, good lawyering is about working creatively with the tools you have, so there will surely be lawsuits filed citing the Texas sodomy case as advancing the cause of gay marriage. Indeed, I would expect some lawyers to cite Justice Scalia's admonition to support this proposition. If a court were to reach the merits of this question, it might have to address both privacy issues under the Fourteenth Amendment "due process" clause and "equal protection" claims. The Supreme Court has often said there is a fundamental right to marriage under the Fourteenth Amendment; but implied fundamental rights, to the extent they exist at all, are defined at least in part by history, tradition and societal customs. Since marriage has always been defined as a legal relationship between a man and a woman I'm not sure the existence of the fundamental right really answers any questions, regardless of what standard of scrutiny is used. And under an equal protection claim, the argument against gay marriage would be that it is rational for a state to limit marriage to heterosexuals since that comports with the history and purposes of marriage laws. I know this sounds somewhat circular, but that is because the reasoning and logic is somewhat self-perpetuating. No doubt, we are about to see the beginnings of a fight for gay marriage in this country, but I think it is likely to be a somewhat longer, slower struggle akin to earlier civil rights battles (hopefully without the violent backlash) and not the doctrinal game of dominoes that Justice Scalia seems to predict.