An Antigay Supreme Court:
Four More Years Or 40?
by Ralph G. Neas
An Advocate.com exclusive posted October 12, 2004
There's more than marriage at stake for GLBT people in this year's presidential election.
With President Bush and GOP congressional leaders pushing to enshrine discrimination in the U.S. Constitution in the name of "protecting" marriage, and antigay measures advancing in states under the same ridiculous rallying cry, it is understandable that political discussion has focused on progress toward marriage equality and the ferocious backlash engineered by equality's enemies.
But GLBT voters and people who support them should also be thinking and talking about another enormously important issueăthe future of the Supreme Court. The Supreme Court plays a huge role in everyone's lives, because it interprets our laws and our Constitution. It has had the final wordăhistorically both bad and goodăon whether the promises of equal justice under the law include gay Americans.
The president elected this November almost certainly will get to name two, three or even four new Supreme Court justices. That should grab the attention of every gay and gay-supportive voter. The historic 2003 ruling in Lawrence v. Texas overturning state sodomy laws would have gone the other way with two more right-wing justices. As we know, those laws had a reach far beyond the bedroomăthey defined gay men and lesbians as de facto criminals and were used to justify such actions as firing employees and taking children away from loving parents.
Gay and gay-friendly voters should be especially alarmed that President Bush has cited Antonin Scalia and Clarence Thomas as his models for future Supreme Court nominees.
Anyone who is tempted to think there are no important differences between the presidential candidates, or who is thinking about supporting a third-party candidate, should think about Antonin Scalia's bitter dissent in Lawrence, which drips with contempt for the justices who voted to overturn the infamous Bowers v. Hardwick decision, which had allowed states to treat gay men and lesbians as criminals.
The same Scalia wrote a venomous dissent to the 1996 decision in Romer v. Evans, which overturned an antigay amendment to the Colorado constitution. In a case concerning an employee fired by the CIA after he revealed he was gay, Justice Scalia claimed that the employee should not even be able to have a court consider his constitutional claims.
Imagine a Supreme Court with one, two, or three additional Scalias. Imagine those denunciations of gay equality being majority opinions rather than angry dissents.With a Scalia-Thomas majority on the Supreme Court, marriage equality would be a distant hope, and a return to other forms of institutionalized discrimination would be an imminent threat.
Equality for gay Americans is one of many crucial issues that are now hanging by a one- or two-vote thread on the Supreme Court, including enforcement of voting rights and other civil rights, privacy and reproductive choice, environmental protection and more. In fact, there is an aggressive and regressive legal movement to return the United States to a pre‚New Deal approach to the Constitution, when states' rights trumped the protection of individual liberties.Much of the social justice progress of the last half-century could be reversed.And a hard-right Court could prevent future progress by rejecting progressive, pro-equality legislation.
So in the final weeks before the election, talk to your friends, family, and colleagues. They might disagree on some issues and might even be squeamish about the idea of gay and lesbian couples getting married, but they should all consider the far-reaching impact of the next president's Supreme Court nominees on equality for gay and lesbian Americans.
Ralph G. Neas is president of People For the American Way, a national civil rights and civil liberties organization that advocates for full legal equality, including marriage equality, for gay and lesbian Americans.
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