Intersection of Law and Policy: Why Conservatives Fear Lawrence v. Texas
From Of Counsel, vol. 4, no 3
By Susan Sommer, Senior Counsel
Published 05/29/08
June 26, 2003 was a high point in American constitutional history. Millions of Americans rejoiced following the Supreme Court's landmark Lawrence v. Texas decision — a shining example of our nation at its best, and a demonstration of our commitment to the dignity and inalienable rights of every American.
For all the credit owed the Court that day for upholding the constitutional rights of all Americans by striking down the remaining sodomy laws, Lawrence was far from revolutionary. By the time Lawrence was decided, only 13 states still had criminal sodomy prohibitions, and just four targeted — as Texas's did — same-sex couples exclusively. Polls at the time showed that a majority of Americans did not support criminalizing private sexual intimacy between same-sex partners. The widespread consensus that lesbian and gay people should not be subjected to this governmental discrimination was reflected in the very briefing submitted to the Supreme Court in Lawrence. Among the amici filing on our side, calling for the Court to hold the Texas law unconstitutional, were the libertarian Cato Institute and Institute for Justice, as well as the Republican Unity Coalition. For all Lawrence's power and majesty, its day certainly was due.
Yet all did not see June 26, 2003 as a day to rejoice. Following the decision, the New York Times reported that social conservatives were reacting with "white-hot fury." That "fury" was flamed by Justice Scalia, whose scathing Lawrence dissent reads as a calculated effort to incite not only anger but action among conservative constituencies. Justice Scalia derided the majority opinion's stirring invocation of shared universal values of liberty and equality as "the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda." He observed (rightly), that though the decision did not address the constitutional right of same-sex couples to marry, it "dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned." Justice Scalia's dissent was heard as a rallying cry to mobilize right-wing political resistance to the Court's ruling and, more broadly, to the "agenda" of those seeking fairness and equality for LGBT people.
And rally they did. Within hours of its announcement by the Court, conservative opponents condemned Lawrence as an endorsement of moral decay by an activist judiciary. They issued dire predictions that child abuse, not to mention legalization of bestiality and incest, were just around the corner. According to Focus on the Family, "With today's decision, the court continues pillaging its way through the moral norms of our country." Evangelical minister Jerry Falwell proclaimed that "this is probably as bad a day as the court has had on social issues since Roe v. Wade." The Family Research Institute decried Lawrence's disregard of so-called "empirical data" that gay people "are disturbed, anti-social, and dangerous." Reverend Lou Sheldon threatened that "[p]eople of faith are not going to lie down and allow their faith to be trampled because a politically correct court has run amok." Calling the Lawrence decision "treasonous," radical right-wing activists demanded impeachment proceedings against the six justices who had voted to strike down the Texas law. Short of insisting on outright impeachment, "cooler" heads among the conservative wing renewed the cry to make the litmus test for judicial appointments a commitment to an anti-LGBT, anti-civil rights agenda, and the litmus test for political candidates a commitment to appoint only conservative judges who could be counted on to vote down civil liberties.
Conservative groups wasted no time channeling their "moral" outrage into fundraising campaigns to build war chests in their fight against LGBT equality. The right-wing religious legal advocacy group Alliance Defense Fund (ADF) called on supporters to help its mission to "limit the impact" of Lawrence. The Liberty Counsel, yet another anti-LGBT religious legal group, promised its donors that "every time...Lambda Legal Defense Fund files suit to destroy our culture, we will be there."
Responding to Justice Scalia's attack on the "law-profession culture" from which a Lawrence ruling could issue, Liberty Counsel joined forces with Jerry Falwell's Liberty University to launch a law-school training ground for "future lawyers, judges, educators, policy makers, and world leaders" who will defend "traditional [i.e., anti-LGBT] family values." The ADF expanded its annual "National Litigation Academy," which it boasts "equip[s] attorneys to battle the radical homosexual legal agenda." These ADF-trained attorneys commit in turn to perform 450 hours of pro-bono anti-civil rights legal work.
It is no coincidence then that we have seen in the years since Lawrence a steady rise in attacks in the courts on LGBT liberties by well-funded religious-based legal organizations. Nor, given the history of other civil rights movements in our country, should this come as a surprise. No civil rights movement succeeds overnight. Backlash and struggle have always been part of the process that leads to equality. Inevitably anti-LGBT forces will score some temporary points along the way. But we are successfully fighting their efforts on many fronts. So far, for example, the right-wing groups have been defeated in efforts:
- to stop governments from adhering to laws and policies treating LGBT people with fairness and equality (see, e.g., the spate of recent cases lost by the ADF challenging New York governmental respect for out-of-state marriages of same-sex couples)
- to stop LGBT parents from enforcing their rights to their children (see, e.g., loss by the Liberty Counsel in Hedberg v. Detthow)
- to intervene as opponents in cases seeking the right to marry (see, e.g., Varnum v. Brien, denying intervention to ADF-led parties)
