SEX & THE SUPREMES: Why Court’s next big battle may be about gay rights

(from The New Yorker:

The Supreme Court last considered a gay-rights issue in 2003, in Lawrence v. Texas, when the Justices ruled, six to three, that the state could not criminalize sodomy between two consenting males. The Justices then issued duelling prophecies about the meaning of their decision. Justice Anthony Kennedy’s opinion for the majority amounted to a sustained plea for equal rights for homosexuals, who “are entitled to respect for their private lives.” But Kennedy asserted that his opinion addressed only the issue before the Court, and did not, for example, presage an endorsement of gay marriage. This disclaimer drew a characteristically biting rejoinder from Scalia in his dissent: “Do not believe it.” Rather, Scalia insisted, “Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda.” When the Supreme Court reconvenes, in October, presumably with a Justice Roberts in the junior seat, the Court will return to the “homosexual agenda.”

The upcoming case reflects the curious state of the contemporary gay-rights movement. In some respects, and in some places, especially within the legal profession itself, the cause of gay rights has never been stronger. As Scalia noted with dismay in his dissenting opinion in Lawrence, the Association of American Law Schools “(to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct.” At the same time, anti-gay-rights forces have continued to gain strength. After most law schools refused to help military recruiters on their campuses under the policy denounced by Scalia, Congress took another tack. They passed a law saying that if a law school persisted in limiting recruiting by the armed forces, the school would lose federal funding. It is the constitutionality of this law, which is known as the Solomon Amendment, that the Court will decide this fall.

As Supreme Court doctrines go, gay rights is a relatively new one, especially compared with decisions on race and gender. Systematic legal efforts on behalf of gays began only in the nineteen-seventies, and the Justices didn’t address the issue in a substantive way until the eighties. But that is changing. In May, a federal district judge in Nebraska struck down a recent amendment to that state’s constitution which banned gay marriage and civil unions; an appeal of that ruling is pending. The Court will almost certainly be asked to decide whether gay marriages in Massachusetts must be honored by other states. The Solomon Amendment case will be an important clue about which side has the upper hand.

http://www.newyorker.com/fact/content/articles/050801fa_fact