Dispatches > The Buzz

Ruing a Roe-like ruling

Aftershocks from the Supreme Court's sodomy decision may continue for decades

Issue: "Marx isn't dead," July 19, 2003

The Supremes may be gone until October-off for cushy "teaching" jobs in Europe, most of them-but the controversy they created with their last-minute decision in Lawrence vs. Texas is sure to be waiting for them when they return.

It's sure to be waiting for their successors on the bench, for that matter. Legal experts are calling the Lawrence decision, which legitimized gay sex as a constitutional right, the most sweeping judgment since Roe vs. Wade. The landmark abortion case has dominated politics and jurisprudence for more than 30 years now, but the fallout from Lawrence could last longer still.

The immediate impact has been fairly limited, despite euphoric predictions at Gay Pride events from New York to San Francisco. Cities and states are scrambling to revise laws that had been erratically enforced to begin with. North Carolina, one of 13 states with anti-sodomy laws, is a case in point: Police in Charlotte, the state's largest city, can no longer arrest men cruising for sexual partners in public parks and restrooms, provided the "date" ends up at home. But they're still actively enforcing the old "crimes against nature" laws when the act itself takes place in the park instead of the bedroom.

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Gay-rights advocates like defense attorney Chris Connelly say that violates the spirit of the court's decision: "The real tenor of this case is not does it happen in somebody's home or somewhere else outside the home. It's about people having the right to make a decision how to live their lives."

So just how private does an act have to be before it's protected by the Constitution? That's just one of the thousands of legal hairs that will have to be split in the coming years. Experts predict a flood of cases in state and local courts, designed merely to establish the specific boundaries of the newfound privacy right.

But activist groups like the Lambda Legal Defense and Education Fund are vowing to push those boundaries still further. Nebraska, Massachusetts, and New Jersey already have gay-marriage cases pending in state courts, and Lambda predicts similar suits eventually will be filed in all 50 states. Add to that a rash of new lawsuits over prostitution, gays in the military, and gay adoption, and it's easy to see how the Lawrence decision could keep the courts busy for decades.

Voters have shown, however, that they're sometimes willing to take matters into their own hands when the courts seem to be moving too quickly. Judges in both Hawaii and Alaska looked poised to legalize gay unions until they were blocked by public referenda, and a similar backlash might develop anywhere in the country. That could be bad news for Democratic politicians at all levels: As Hawaii proved, a gay-marriage ballot initiative electrifies hard-core conservatives and neutralizes moderate soccer moms.

For now, however, the politician with the most to lose is President Bush. His low-key response to the Lawrence decision enraged many conservatives, and some are threatening to stay home next November.

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