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

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

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But if premature as a legal matter, Justice Scalia's jump from sodomy to marriage contained a great insight. Once a despised social group has achieved constitutional protection against harmful discrimination—sodomy laws for gay people, Jim Crow laws for people of color—the group will aspire toward full constitutional equality, including recognition of its members' relationships and families. The civil rights movement attacked the segregated schools and facilities of the South before it went after laws barring interracial marriages; indeed, the court did not sweep away anti-miscegenation laws until 1967.

On gay marriage, Lawrence has had a slow-moving but unmistakable effect. In 2003, the Massachusetts Supreme Judicial Court invalidated that state's same-sex marriage ban. The court mentioned Lawrence but relied on the state constitution. State courts rejected state constitutional marriage challenges in Arizona (2003), New Jersey (2006), New York (2006), Washington (2006), and Maryland (2007). Then, weeks ago, the California Supreme Court welcomed gay couples into the summer wedding fold. Although the California court, like the one in Massachusetts, invoked its own state constitution, it also explicitly relied on Lawrence to say that gay couples have a fundamental right to civil marriage. And it went further by implicitly relying on Lawrence to say that when laws make distinctions about people because of their sexual orientation, those statutes will be subject to a more scrutinizing level of judicial review—just as laws that draw distinctions based on race, sex, and religion are.

The new California marriage decision truly is a landmark in American constitutional law. If other states follow, as they did after the California Supreme Court struck down the state's ban against interracial marriage in 1948, then gay marriage will become a political reality all over America. And a future U.S. Supreme Court will probably one day also follow California's lead to make marriage equality (or whatever the states agree on) a national constitutional right.

The legacy of Lawrence v. Texas thus is still up for grabs. And it's in the hands of not only state judges and legislators but also the country's next generation. If they accept their lesbian and gay neighbors as full and equal citizens, as we think they will, Lawrence will be for gays what Brown was for blacks: a judicial contribution to a revolution in public attitudes as well as to the law.

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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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