Friends of the court: landmark decisions on same-sex sexual harassment and marriage side in gays' favor.

Landmark decisions on same-sex sexual harassment and marriage side in gay's favor

Judges can be the best friends gay men and lesbians have. Two recent landmark decisions hailed by activists have made for a safer workplace and removed another hurdle on the road to legalized same-sex marriage.

On March 4 the Supreme Court ruled unanimously that federal law prohibiting sexual harassment covers same-sex cases. In a decision written by conservative justice Antonin Scalia, the court said that "behavior so objectively offensive as to alter the conditions of the victim's employment" constituted harassment under Title VII of the Civil Rights Act of 1964, no matter what the sex of the harasser. The ruling came in the case of Joseph Oncale, a straight oil-rig worker who charged that he was sexually assaulted and threatened with rape by male supervisors and coworkers. An appeals court had rejected the claim on the grounds that same-sex sexual harassment was not covered under federal law. The Supreme Court ruling revives Oncale's claim and sends the case back to a district court for trial.

Gay activists said the case was important because it effectively included gay men and lesbians among those protected against workplace harassment. "This is a resounding statement that sexual-harassment laws mean what they say and that lower courts cannot artificially carve out exceptions--even in a same-sex context," said Kevin M. Cathcart, executive director of Lambda Legal Defense and Education Fund, which filed an amicus curiae brief in the case.

Just five days earlier Alaska superior court judge Peter Michalski ruled that that state has to meet the highest standard of proof in showing why it has the right to ban same-sex unions. The decision, which uses the same standard applied by Hawaii courts, came in the case of Jay Brause and Gene Dugan, a gay couple of 18 years who challenged a 1996 law banning gay marriage.

"It is the duty of the court to do more than merely assume that marriage is only, and must only be, what most are familiar with," the judge wrote in his 13-page opinion. "In some parts of our nation mere acceptance of the familiar would have left segregation in place." Assistant Attorney General John Gaguine has promised to appeal, noting that the "compelling interest" standard set by Michalski is so difficult to meet as to be a legal kiss of death. It could be years before the case is finally resolved. In the meantime, the ban on gay marriage still stands.

Dan Foley, the Honolulu attorney who has represented the three couples in the Hawaii case from the beginning of the suit, said the Alaska case could make the Hawaii state supreme court, which could issue its final ruling at any time, feel a little less lonely. "It doesn't have any legal impact on the pending case here, but it's helpful to see our decision embraced by another court," he said. As for the prospect that the 49th state would follow in the footsteps of the 50th, Foley said, "it would be nice for people to have a choice."