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A supreme fight: how will the future of gay equality be affected by Bush appointees to the U.S. Supreme Court? Battle lines are now being drawn.

This summer Washington, D.C., is turning more and more of its attention toward one topic: how many justices the Bush White House will be able to appoint to the U.S. Supreme Court. The White House already has a short list of candidates to replace Chief Justice William Rehnquist, 80, who is battling thyroid cancer, which most court watchers expect will force him to retire any day.

Rehnquist is one of the court's three most conservative justices, and a conservative replacement would not change the political balance of the court. But Bush, eager to establish a judicial legacy, is likely to pick a fairly young nominee whose rulings will shape the court for years to come, and some gay court watchers fear Bush will appoint a justice who is even more ideologically conservative than Rehnquist.

If he chooses judges who interpret the law as justices Antonin Scalia and Clarence Thomas do, the fight for gay equality could be set back for decades. How will we be affected, specifically? Cases challenging the military's sodomy law and its "don't ask, don't tell" policy, for example, are making their way up from lower courts, as are several lawsuits questioning how antidiscrimination laws should apply to gay, lesbian, bisexual, and transgender people.

In one case--Cook v. Rumsfeld, now pending in a federal court in Boston--gay service members maintain that "don't ask" violates the U.S. Constitution. If the government loses and seeks an appeal, it could be heard by the Supreme Court. And a federal court's decision in May overturning Nebraska's strict state constitutional limitations on same-sex couples' rights, a ruling now under appeal, also could wind up before the Supremes, legal experts say.

The ramifications of those cases could go way beyond the military or states with marriage bans, says Jon Davidson, legal director for Lambda Legal. "These cases raise basic issues, like 'Can the government treat gay people differently [from] nongay people?'" he says. "Although the Supreme Court doesn't take many cases, the ones they do are important and set all kinds of precedents."

Another fight likely will erupt over the next replacement on the Supreme Court. Since eight of the nine justices are over age 65, the wait might not be long. At 85, John Paul Stevens is the oldest of the justices and one of the most liberal; if he were replaced by a more conservative justice, that could tip the court's balance to the right. Sandra Day O'Connor, 75, a moderate who is thus a swing vote frequently, may also soon retire.

Recent Senate battles reveal the lengths to which both sides of the ideological spectrum are willing to go in order to mold the court for the future. In May the Senate was on the brink: Republicans (who hold 55 of its 100 seats) vowed to take away Democrats' ability to block judges from being confirmed to federal appellate court seats by their use of the filibuster; Democrats, in turn, threatened to grind most Senate activity to a halt. At the last minute a group of moderates from both parties averted a meltdown by drawing up a truce to allow Democrats to filibuster some but not all of Bush's picks. However, it is unclear whether the peace will hold once lawmakers start considering a Supreme Court justice.

Parents, Families, and Friends of Lesbians and Gays is one of the groups participating in the Coalition for a Fair and Independent Judiciary, which is mobilizing grassroots efforts to maintain the filibuster and otherwise fight potentially extreme nominees. "The president is setting the tone for the process of how he's going to go about selecting a Supreme Court nominee," says Elizabeth Hampton Brown, field and policy coordinator for PFLAG.

Conservative groups such as Focus on the Family also have been organizing for months with the goal of filling Supreme Court vacancies with justices who oppose abortion and gay rights. Brown says pressure from these groups is causing Republican lawmakers to take extreme measures. "Republicans have established that they are willing to change the rules to get what they want," she says.

That strategy should send shivers down the spine of every gay man and lesbian in the United States.
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Title Annotation:WASHINGTON ADVOCATE; George W. Bush
Author:Heil, Emily
Publication:The Advocate (The national gay & lesbian newsmagazine)
Geographic Code:1USA
Date:Jul 19, 2005
Words:699
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