In a seething dissent, U.S. Supreme Court Justice Antonin Scalia chastised his colleagues in 1996 for their new equal protection ruling in favor of gay men and lesbians that "contradicts" a decade-earlier anti-gay decision.
In pop psychology vernacular, the passionate conservative was merely pointing out the elephant in the middle of the room that his colleagues were pretending didn't exist: In its 6-to-3 ruling, the court declared in Romer vs. Evans in 1996 that Colorado had violated the federal equal protection rights of gay people by setting a separate, higher hurdle for them to clear in order to win legal protections, such as laws prohibiting anti-gay job discrimination. In doing so, the justices didn't mention the court's controversial 5-to-4 ruling in Bowers vs. Hardwick in 1986 that gay people have no federal privacy rights, so states were not acting outside the U.S. Constitution by criminalizing gay sex.
"If it is constitutionally permissible for a State to make homosexual conduct criminal, surely it is permissible for a State to enact other laws merely disfavoring homosexual conduct," Scalia's Romer dissent claimed.
The court's elephant -- the contradiction between those decisions' very different ways of viewing the rights of gay citizens -- has caused much mischief in lower courts. Judges who want an excuse to rule against, say, gay parents still trot out Hardwick. More progressive judges lean on the newer Romer ruling to, for example, protect gay schoolkids from harassment.
But now Scalia is about to feel the sting of the old proverb "Be careful what you wish for." The high court has agreed to decide a Texas case that raises the equal protection rights of gay people in a criminal context. In Lawrence vs. Texas, the court will decide whether Texas and three other states are violating the Constitution by making certain sex acts illegal for gay couples but legal for heterosexual couples.
I predict the court will strike down these prejudiced laws. I hope it will also take the next logical step and reverse Hardwick, a decision that says more about the personal views of an earlier era's justices than about the Constitution's majestic promises.
Amid the excitement that the court is summoning its elephant back in for a thorough inspection, a similar critically important case has gone largely unnoticed. On Jan. 21, the court is expected to announce whether it will also decide Limon vs. Kansas, which asks whether sexually active gay teenagers can be punished under vastly harsher criminal rules than their heterosexual counterparts.
Matthew Limon, who is mildly retarded and had just turned 18, had consensual oral sex with a teen nearing his 15th birthday at their Kansas group home. Under Kansas' "Romeo and Juliet" law -- a sort of get-out-of-jail-free card that many state legislatures give similarly aged sexually active teens while rightly applying serious penalties against adults who have sex with minors -- Matthew could have been sentenced, at most, to 15 months if his partner had been a girl. Instead, Matthew was sentenced to 17 years in prison. Now 20, he could remain behind bars until he's 36 years old unless the Supreme Court says otherwise.
"Matthew Limon doesn't claim that the state can't punish him for engaging in sexual activity with another teenager," says his attorney, Tamara Lange of the American Civil Liberties Union. "What he claims is it is not fair to punish him more severely because he was involved with a teenager of the same sex. ... This case and Lawrence offer an opportunity to send a clear signal that equal protection applies to gay people even when about sex or criminal law."
The Supreme Court needs to look its aging elephant in the eye and then make it vanish. To do that, a majority of justices simply needs to declare that, in criminal law as in the political arena, states must apply the same rules to everyone.
Deb Price of The Detroit News writes the first nationally syndicated column on gay issues and is the co-author of "Courting Justice: Gay Men and Lesbians v. the Supreme Court." To find out more about Deb Price and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate web page at www.creators.com .
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