Friends in high places?

Gay men and lesbians are jubilant over the Supreme Court's decision on Amendment 2, but the ruling's significance has yet to be made clear

For many lesbians and gay men 1996 was the year the tide in the U.S. Supreme Court took a dramatic turn at long last. In a majority decision noteworthy for its passionate condemnation of antigay animus, the Court overturned Colorado's Amendment 2 in May. The ruling was cause for jubilation among activists who had endured the court's 1986 Bowers v. Hardwick decision, which upheld Georgia's same-sex sodomy law.

"What was really exciting about this year was that it opened a new chapter with Romer [v. Evans, as the Colorado case was known], and dosed the ten-year chapter of Hardwick, which had cast a looming shadow over our efforts," says Evan Wolfson, senior staff attorney at Lambda Legal Defense and Education Fund, a gay group. "Now the terrain has changed entirely."

At the same time, the November presidential election reassured gay men and lesbians, many of whom had mixed feelings about the incumbent, that the Court's ideological balance is unlikely to shift anytime soon. "The most important thing that happened is having Clinton win reelection and be the person in a position to act if fate decides we need another appointment to the Court," says Ruth Harlow, managing attorney at Lambda's New York office. "We'll have a more moderate appointment than if we had a Republican president."

Yet despite the excitement the ruling generated, just how big a landmark the Romer decision is has yet to be determined. The case continues to consume the attention of legal scholars. Given its language-simultaneously broad yet vague - the majority decision written by Justice Anthony Kennedy leaves open the possibility that the Court will have to daftly its position on gay rights at some future point. "What we have is sort of an enigma," says Marc Fajer, a professor at the University of Miami School of Law. "Romer is a case that might be incredibly narrow, or it might not. We don't know."

The problem, says Fajer, is that the decision is not dear as to whether it can be applied to other gay issues: "Read narrowly, it might be interpreted to mean that individual statutes aimed more precisely at particular kinds of behavior, such as statutes designed to prevent gay people from adopting children, are OK as long as they are not the kind of broad, sweeping law that Amendment 2 was."

Thus, the coming year on the Court promises to be a waiting period for clarification of the decision. "For legal scholars," says New York Law School professor Arthur Leonard, "the interesting thing will be to see how Romer plays out in the lower courts."

In the meantime, says Fajer, activists should brace themselves for slow change from the Court even if it does remain sympathetic to gay rights. "The best-case scenario," he says, "is that a sufficient number of people on the Court have 'gotten it' to the extent that we might plausibly see a slow expansion over a reasonably long period of time of the protections the Constitution provides."

Such actions have a historic precedent, says Matt Coles, director of the Lesbian and Gay Rights Project of the American Civil Liberties Union. "One of the anomalies of constitutional history is that while we think of the Court as protecting people's basic rights, the truth is, the biggest thing most movements have gotten from the Court is protection in being able to make their case politically, as opposed to a declaration of basic rights," he says. "Romer is of a piece with that."

Harlow argues that gays and lesbians are increasingly aware that relying on the Court for major gains is a flawed strategy. "There is a tendency to do that," she says, "but I think there has been tremendous grassroots activity that has changed the atmosphere we face when we go into court."

No case now before the Court or likely to appear before it during the current term carries the potential impact that the Romer decision did. Indeed, only a handful of cases have a direct beating on gay or AIDS issues. Among them are those pertaining to physician-assisted suicide, Internet regulation, and job discrimination. "After the Court does something enormous like Romer v. Evans, it's sometimes very good to have a little breathing period," says Coles. "It's good to see where things settle."

Harlow agrees. "Romer was such a big step for the Court that I think they will be more comfortable taking the next step if we give them a year or so for it to sink in," she says. "It will take a little bit longer, but our success will be greater."

While the Court will not be dealing with a blockbuster like Romer in its current term, it will still be grappling with several important issues. The Court has decided to hear a challenge to the Communications Decency Act, which regulates speech on the Internet and which has been criticized by AIDS activists, among others, as an infringement on open discussion of sexual issues. According to Coles, the decision could have a profound impact on gay and lesbian teenagers. "The immediate target of the act is kids," he says, "and one of the groups most likely to be hamstrung are lesbian and gay kids, who need access to communication about being lesbian and gay and communication with each other far more than most kids."

The justices will also hear a case involving a terminally ill patient's right to commit suicide with the help of his physician. The so-called right-to-die case includes a number of people with AIDS and their physicians among the plaintiffs. "It's very hard to tell how that will come out," says Leonard. "The Court may be sharply split on it."

Finally, the Court may have the opportunity to decide whether to hear the case of Robin Shahar, who was offered a job as a state attorney in 1990 by Georgia attorney general Michael Bowers. Bowers withdrew the offer after learning that Shahar was planning a commitment ceremony with her longtime girlfriend. "It's a little too soon to predict that it's going to the Supreme Court, although it's an important case down the line," says Harlow, who argued Shahar's case before a federal appeals court in October.

Just as noteworthy as the cases the Court will consider are those it seems likely to bypass during its current term, which ends in July. Those cases include challenges to the "don't ask, don't tell" policy on gays in the military and to the Hawaii marriage case.

The justices may be waiting for conflicting opinions on the military policy before accepting a challenge to it. Says Leonard: "There's no reason to get into that mess unless they have to."

However, as Elliot Mincberg, general counsel for the liberal lobbying group People for the American Way, notes, a series of other cases the Court has under consideration could influence future decisions on gay and lesbian issues even though the cases themselves do not deal with gay concerns. "There's a whole range of cases, from the First Amendment case on cable-television programs to how much power Congress has to pass certain laws, that are very important," he says. "They can have very important implications."

Clouding the picture are rumors that three justices will step down shortly: William Rehnquist, Sandra Day O'Connor, and John Paul Stevens. Given the secrecy that shrouds the Court, observers say that any gossip about changes in personnel is nothing more than speculation.

"I would not be surprised at all to see none of them resign in 1997," says Mincberg. "Both O'Connor and Rehnquist, who had health problems, seem to be better. Stevens has been enjoying things because when he disagrees with Rehnquist, he's the senior justice and decides who writes the majority opinion."

However, Stevens, the oldest and the longest-serving justice, may wish to retire sometime during Clinton's second term. "There has been some noise," Fajer says, "that he would step down in a Democratic administration."

Given the Republican-controlled Senate, Clinton would be forced to pick a moderate replacement for any Court vacancy. "My guess is that Clinton appointees will continue to be solid moderate lawyers who won't be seen as strong ideologues either way," says Coles. "I think the Court might get more centrist than it's been, which is where it's heading anyway."