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Revolution in WaitingTaking the pulse of gay rights in the courts.

By William N. Eskridge Jr. and Darren R. Spedale
Posted Friday, June 20, 2008, at 7:56 AM ET

Five years ago this month, the Supreme Court struck down Texas' consensual-sodomy law in a prosecution involving two men who were having sex in a private home. Justice Kennedy's majority opinion in Lawrence v. Texas contained some high-flying rhetoric insisting that lesbian and gay Americans are ordinary citizens entitled to respectful treatment. Justice Scalia's outraged dissent charged the court with reading the entire "homosexual agenda" into the Constitution and, further, predicted that the majority's analysis spelled the end of all morals-based regulation of sexual conduct. At risk, Scalia warned, were laws against fornication, bestiality, adultery, bigamy, incest, obscenity, prostitution, and masturbation(!).

Echoing the charged debate within the court, Lawrence was hailed by the left and condemned by the right as a landmark that would sweep away state sex-crime laws, invalidate anti-gay policies, and impose gay marriage on America. In fact, Lawrence has, thus far, inaugurated no revolution. Sex-crime laws flourish, and there are today more statutes that restrict the rights of gay and lesbian Americans than there were in 2003. So what is the real legacy of Lawrence?

To begin with, Justice Kennedy's opinion declined to say that Americans have a fundamental right to pleasure. Consistent with this reasoning, lower courts have rejected Lawrence-based challenges to state and federal laws regulating incest, prostitution, obscenity, child pornography, bigamy, and sex with minors. There have been no reported challenges to bestiality or masturbation laws.

While fears that power-hungry judges would seize upon Lawrence to legalize incest and bigamy proved comically exaggerated, Lawrence has had a subtler effect. Justice Kennedy's opinion implicitly demanded that states defend laws governing sexual conduct with evidence that this conduct is causing harm to other people. Public distaste and moral condemnation are not sufficient to justify regulation. (Indeed, the Supreme Court has generally not upheld sexual-conduct laws without some evidence of tangible harm to others.) Accordingly, the Virginia Supreme Court has applied Lawrence to strike down a state law making it a crime for consenting men and women to have penile-vaginal sex outside of marriage, and the U.S. Court of Appeals for the 5th Circuit has said that the use of sex toys by consenting adults is constitutionally protected. The upshot, then, has not been the collapse of sexual-conduct laws but instead a modernization of their justification.

Did Lawrence write the "homosexual agenda" into the Constitution? After the ruling, the Kansas Supreme Court struck down a state law penalizing juvenile homosexual relations much more severely than the same heterosexual relations; the court reasoned that the different penalties reflected anti-gay prejudice, no longer an acceptable state justification. But other courts have passed on some worthy claims. In the 2004 case, Lofton v. Department of Children & Family Services, for example, the U.S. Court of Appeals for the 11th Circuit upheld a Florida law barring lesbian or gay adults from adopting children.

On the other hand, Lawrence has probably helped make the country more gay-tolerant. Justice Kennedy's opinion noted that lesbian and gay Americans productively participate in their communities, join in committed relationships, and raise children. This point has resonated. Since Lawrence, more school districts have backed away from discriminating against gay teachers and students, more municipalities welcome lesbian and gay employees, more states allow two women or two men to have parental rights to the children they are raising together, and more police departments are protecting gay and transgender citizens against hate crimes rather than harassing them. In the middle of a war, the Bush administration has relaxed enforcement of the military exclusion of gay people. Judicial activism, 0; political toleration, 1.

How about the rush to gay marriage, the punch line of Justice Scalia's heated dissent? This sounds like Scalia's silliest argument. To say that the state cannot brand a gay couple as criminals because of their sexual intimacy is a far cry from saying the state must recognize their relationship as a marriage. The former is toleration; the latter signifies greater civil approval. For this reason, litigants have not pressed claims that Lawrence itself knocks down the exclusion of same-sex couples from all state civil-marriage laws.

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William N. Eskridge Jr., a professor at Yale Law School, is the author of Dishonorable Passions: Sodomy Laws in America, 1861-2003. Darren R. Spedale is the co-author (with Eskridge) of Gay Marriage: For Better or for Worse? What We've Learned from the Evidence.
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