Volume 17 • Issue 5 | June 25 - July 1, 2004

Talking Point


Building on last year’s decision on gays

By Kevin Cathcart

Downtown Express file photo by Ramin Talaie

Same-sex couples came to the Municipal Building in March trying to get marriage licenses.

It was one of those rare moments when you just know that you’re witnessing history.

A year ago, while waiting to hear the U.S. Supreme Court’s ruling in Lambda Legal’s case challenging Texas’ “homosexual conduct” law, I thought about the last two decades leading up to that moment. I remembered sitting in the same chamber 17 years earlier when the Supreme Court issued a stinging defeat and upheld Georgia’s anti-gay sodomy law. In 1986, our nation’s highest court said that it was perfectly legal to brand lesbians and gay men as criminals. It was a devastating ruling – both politically and personally – for lesbian, gay, bisexual and transgender people all around the country.

After that terrible setback, we spent years chipping away at sodomy laws on the state level and laying the groundwork for another U.S. Supreme Court case. We had done everything we could to produce a different result in the Lawrence case, but we also knew that the Supreme Court rarely reverses itself so soon after an earlier ruling. And so, on June 26, 2003, I sat in the Supreme Court gallery feeling confident but uncertain – hoping for a strong victory, yet barely allowing myself to start thinking about how we’d use a good ruling to advance equality in for L.G.B.T. people.

In the moments before the ruling was announced, the courtroom was electric. As Justice Anthony Kennedy read the court’s decision, it became clear that we hadn’t just won, we’d won big, with a ruling that struck down every remaining sodomy law in the nation and said unequivocally that lesbians and gay men are entitled to respect, dignity and equality. Some people in the room openly wept as Justice Kennedy read the decision.

It has been much quoted and endlessly referred to, but I still get chills when I hear the court’s words that all people “ …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.” That passage in the majority opinion is incredibly powerful. I can safely say that I’ll always remember Justice Kennedy’s voice reading that passage because that was the moment I knew that we did more than strike down sodomy laws that day — we ignited a spark that took this country by storm.

It takes many years for the impact of a U.S. Supreme Court to take shape. A precedent like this one takes some time to fully seep into the legal system and determine the outcome of other cases. The cultural impact of the Lawrence decision began immediately, though, and we’re already starting to see its significant ramifications.

Justice Scalia lamented in his dissenting opinion that the Lawrence decision leaves no justification for barring same-sex couples from marriage. We think he’s right – and we’re working hard to make that prediction come true. Just six months after the Lawrence decision was delivered, it was cited in another landmark opinion — this one from the Massachusetts high court, allowing same-sex couples to marry. The Lawrence decision has also been invoked in other marriage-related cases, as well as in a host of other cases on L.G.B.T. issues like adoption, custody and employment.

The whirlwind of progress for marriage equality for same-sex couples has left some people wondering how marriage got on the radar screen so quickly and in so many places. The answer comes right from that warm June morning last year at the U.S. Supreme Court. We may take two steps forward and one step back as we move ahead on such new ground, but there’s no mistaking the fact that we are, indeed, moving forward more than most of us could have predicted.

At the same time, many people wonder about possible “backlash” from so much debate and progress. The potential for “backlash” didn’t begin a few months ago when couples started getting married in San Francisco. It began one year ago, when anti-gay conservatives saw the same possibilities we saw in the Lawrence decision. These conservatives saw that we secured a building block for equality that will have ripple effects for years to come.

It is now time for us to protect our hard-fought victory and build on it. Lambda Legal is litigating cases seeking full marriage for same-sex couples in New Jersey, New York, California (with the American Civil Liberties Union and the National Center for Lesbian Rights) and Washington State (with the Northwest Women’s Law Center). Along with our colleagues at other groups, we’re also pushing forward to protect L.G.B.T. youth, fight employment discrimination and win protections for L.G.B.T. parents.

Two decades ago, after a crushing defeat at the U.S. Supreme Court, we knew we’d be back there someday. Some people said that it was impossible to imagine the court striking down all of the sodomy laws, let alone a state high court ruling for marriage equality. But when our work impacts so many people in so many ways, we have to stretch the imagination of what’s possible. June is always a time of celebration in our communities. This June 26 is truly a time to celebrate – and to redouble our commitment to reach for the stars.

Kevin Cathcart is the executive director of Lambda Legal, the lead counsel in the “Lawrence v. Texas” U.S. Supreme Court case.



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