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Courting discrimination: the 2003 Supreme Court ruling that demolished sodomy laws has yet to provide a boost for gay rights at the local level.

Last summer, gay rights advocates hailed the historic U.S. Supreme Court decision that struck down remaining sodomy laws across the country. Jubilant speakers at rallies everywhere predicted that the Lawrence v. Texas decision would drastically influence gay and lesbian equal rights cases for the better. "Let a slate of recent high-profile court cases has shown that the aftermath of Lawrence hasn't been as revolutionary as many assumed.

In January the 11th U.S. circuit court of appeals upheld a lower court's ruling that gay men and lesbians in Florida could not adopt children. The court ignored Lawrence, writing that "any argument that the Florida legislature was misguided in its decision is one of legislative policy, not constitutional law." The decision rebuffed three foster families, including partners Steve Lofton and Roger Croteau, whose case was made famous by Rosie O'Donnell. The men had raised their son for most of his life.

The American Civil Liberties Union tins asked the 11th U.S. circuit court of appeals in Atlanta to reconsider the ruling. "The appeals court completely misunderstood the Supreme Court's ruling in Lawrence v. Texas, which says that states can no longer make up reasons to discriminate against gay people," says Matt Coles, director of the ACLU's Lesbian and Gay Rights Projects. "Sexual orientation has nothing to do with a person's ability to parent, and this law has nothing to do with child welfare. For the sake of the thousands of children in Florida iii need of a home, we hope the court will reconsider."

In Kansas a state appeals court ruled 2-1 that there was no problem with Matthew R. Limon serving 17 years in prison for having consensual oral sex with a male minor when Limon was 18. If the minor had been a female, he would have received a much lighter sentence [see box, page 27]. The decision was specifically disappointing considering that the U.S. Supreme Court had specifically instructed the Kansas court to reexamine tire case in light of the Lawrence decision. However, the court said the state had every right to "encourage and preserve the traditional mores of society."

Meanwhile, state legislatures from Utah to Maryland have been stumbling over themselves to change their constitutions to ban same-sex marriages. Virginia is still hauling men into court under the pretense of its defunct sodomy laws.

William Eskridge Jr., a Yale University law professor notes that there may have been some irrational exuberance around the ruling. "I think pro-gay people generally were more optimistic about how Lawrence would be applied by the lower courts," he says. "What we're going to see is a more conservative application of Lawrence in the Southern states and in certain parts of the Midwest and West than you are going to find in the Northeast states, the Great Lakes states, and the West Coast. The Limon decision in Kansas and the Lofton decision in the 11th Circuit are perfect examples of that."

The unique nature of the Lawrence decision itself also means that gay rights cases are still up to debate, says Coles of the ACLU, which bas been involved in both the Kansas and Florida cases.

"There's a controversy in the courts over how far it goes," he explains. "Does it just say that states can't pass criminal laws like Texas had, or does it go much farther in protecting relationships and sexuality? The rhetoric of the case--the grand things they said about relationships--certainly strongly suggests it goes much farther, but the legal analysis isn't all that clear, so it means there is a fight going on in the lower courts."

Coles stresses that neither Limon nor Lofton are necessarily over. The Limon case can be appealed to the Kansas supreme court, and Lofton could get another hearing in the federal court system. "People should certainly be distressed that two of the first few cases after Lawrence we seem to try and take it back away again," he sacs. "But it's going to be a fight."

It will also be a step-by-step process. Despite all the language in the Lawrence decision about protecting guy and lesbian people's right to privacy, legal rulings are supposed to apply arguments only to the issue in front of them. In his dissenting opinion in the Lawrence case, Justice Antonin Scalia went a step further, warning that the Supreme Court had "taken sides in the culture war" and opened the dour to gay marriage. Yet Eskridge believes that "won't happen anytime soon."

Instead, years may be spent battling for constitutional equality issue by issue: in sentencing guidelines (the Limon case), in family law (the Lofton case), and eventually in access to marriage. Legal experts know that no matter how well-written a law is or how strong a decision is in terms of expanding rights for a disenfranchised class, cultural norms are a massive influence in determining real change. The landmark 1954 civil rights case, Brown v. Board of Education, didn't end racial discrimination, and the 1973 Roe v. Wade decision did nothing to end the controversy over abortion. If anything, Schwartz says, the struggle for LGBT equality has just begun. "It is really incumbent on every person, unfortunately right now, to be the ambassador to the rest of the world and say 'I need for you to know me, I need for you to know the legal rights that are being denied me and my family,'" she says. "Honestly, that is a huge part of what made the difference between Bowers and Lawrence, and it's going to be a huge part of the difference between Lawrence and full equality down the road."



LEGAL QUESTION: Do gay and lesbian teens have the same legal protections as their straight counterparts if they are charged with committing voluntary sexual acts?

THE CASE: Some may wonder why a case that appears to be only about child molestation is being challenged by gay and lesbian rights activists. It isn't that clear-cut. Kansas bas a "Romeo and Juliet" law, which offers special protections to straight teens who voluntarily have sex. It prevents them from being charged as full-fledged adults and prosecuted under the state's sodomy statute. Under the laws, if a teen 19 or younger engages in consensual sex with a partner whose age is within four years, the penalties are less harsh. However, gay and lesbian teens were never written into the law. If Limon had done the same with a female, he would have been handed a 15-month sentence at most.


A state appeals court majority decision said that despite Lawrence, the state can "encourage and preserve the traditional mores of society."



LEGAL QUESTION: Can gay men in Virginia still go to jail for engaging in consensual sex, even though the Supreme Court ruled they cannot?

THE CASE: On February 17 defendant Joel Singson was handed a three-year sentence (all but six months suspended) for asking an undercover police officer for sex. He and the cop disagree whether the sex would have occurred in a public rest room or in private.

DID LAWRENCEHAVE AN IMPACT? In light of Lawrence, the Virginia legislature is attempting to clarify its murky sodomy law to distinguish between public and private sexual acts.



LEGAL QUESTION: Can gay people adopt children in the state of Florida?

THE CASE: A challenge to Florida's 1977 ban on adoption by gays and lesbians, which was inspired by conservative orange juice queen Anita Bryant. Three families sued to adopt their foster children, many of whom had been raised by the men for years.

DID LAWRENCEHAVE AN IMPACT? The 11th U.S. circuit court of appeals ignored Lawrence, writing that "any argument that the Florida legislature was misguided in its decision is one of legislative policy, not constitutional law."

Lisotta bas written for L.A. Weekly.
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Title Annotation:Courts
Author:Lisotta, Christopher
Publication:The Advocate (The national gay & lesbian newsmagazine)
Date:Apr 13, 2004
Previous Article:"Kick-ass" black gay TV.
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