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Holding Court with Joan Biskupic

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Friday, November 19, 1999

Spurred by cultural and political changes across the country, courts increasingly have been siding with gay men and lesbians and applying principles of equality to sexual orientation. In recent years. Four states have begun allowing gay couples to adopt children jointly and a half a dozen states have overturned sodomy laws that targeted homosexual acts.

Gay people are increasingly winning job discrimination cases, too, including a gay police officer in New York who was awarded $380,000 last summer after being taunted and harassed by fellow officers. Just last Monday, the Supreme Court left intact a groundbreaking Massachusetts court decision that declared a lesbian woman the "de facto" parent of her former partner's son. Join "Holding Court" Friday as we discuss the lay of the land of gay rights. Joan Biskupic has covered the Supreme Court for The Washington Post since 1992. Co-author of the third edition of Congressional Quarterly's encyclopedia on the Supreme Court, she holds a law degree from Georgetown University. Biskupic covered government, politics and legal affairs for CQ's Weekly Report before joining The Post.

She answers your questions on the Supreme Court and legal affairs on Fridays at 11 a.m. EST. The transcript follows:

Joan Biskupic: Welcome! This week we're taking on the emerging body of law regarding the rights of gay men and lesbians. But feel free to ask also about the Supreme Court's order last Monday agreeing to take a school prayer case for the first time in eight years. The question is whether students may lead prayers over the loud speaker at football games. The case is from Texas.

Port St. Joe, Fla.: Has there been much case law on same-sex marriages? A friend in my research class has same-sex marriages as his topic for a paper and except for Hawaii, he is having trouble finding anything. I know it is against the law in Florida, but it seems that someone would challenge the law and test it. Thanks for having this forum!

Joan Biskupic: Hello, Port St. Joe. Currently no state allows same sex marriage, but courts in Hawaii and Vermont right now are considering cases involving whether two men or two women have a right to marry under their respective state constitutions. I don't know if your friend has Internet access but various advocacy groups, including the Lambda legal defense and education fund, have Web sites tracking developments in the states. The Family Research Council, on the other side of the debate, also might be following state-by-state legislation. In early November, when I last checked, 29 states had laws specifically barring same-sex marriages.

Annadale, Va.: While it's great that gay men and lesbians are receiving more legal protection, nothing is being done, it seems, for bisexual and transgendered people. It's not as if bisexuals have any easier, because we do not, and there is an escalating amount of violence against transgendered people. How can legislation based on sexual orientation go beyond the letter of the law to protect bisexuals and transgendered people?

Joan Biskupic: Interesting question. Some of the proposed laws I've seen have included bisexuals and transgendered people. And many of the cities and companies that have adopted anti-discrimination policies broadly prohibit bias "based on sexual orientation," which I presume would include the range of people you're talking about. I'm not an expert in this area. Have you seen cases in which gay men but not bisexuals, for example, were protected?

Washington, D.C.: Anti-discrimination laws often have an exemption for religious organizations. Has the Supreme Court ever considered the distinction between "core" activities of a religious entity (for example, ordaining a minister) and ordinary, non-religious business activities (for example, hiring an architect or a janitor)?

It would seem logical to apply equal protection arguments to the latter examples, even if the First Amendment covers the former.

Joan Biskupic: There are distinctions in the law, because while government cannot impinge on religious freedom, it cannot stand by while some denomination engages in unjustified discrimination or some other unlawful conduct. More than a century ago, for example, the court rejected religious freedom arguments from the Mormons to uphold a federal law that banned polygamy. ... So your point is right, equal protection concerns can override religious exercise ones in some cases ... but I don't know of any employment dispute like the one you suggested.

Washington, D.C.: It seems to me that the only principled basis on which the court can rationalize its failure to classify sexuality as a semi-suspect classification – as it does sex or gender-based classifications – is a presupposition that sexuality is predicated upon conduct, and not status. Do you agree that this is the court's position? If not, what is its reason for not characterizing sexuality as semi-suspect? If you do agree, how can the court justify extending the conduct rationale to government action that discriminates against those with a homosexual orientation?

Joan Biskupic: That's a big question. And one that the court did not directly confront when it issued its last gay rights decision, the 1996 Romer v. Evans case. The justices found the government action against homosexuals in that Colorado dispute unconstitutional, but the majority did it based on a lower standard of review. (For the lawyers in the crowd, rather than using what's known as "strict" or "intermediate" scrutiny, it used a "rational basis" test, saying that Colorado's prohibition on laws protecting gay people lacked a rational relationship to any legitimate state interest.) ..... Now, back to the point about whether the justices think of gay sexuality merely as conduct... that certainly was the sentiment behind the 1986 Bowers case, in which the justices upheld Georgia's sodomy law. The majority said the Constitution doesn't protect private consensual homosexual CONDUCT. That case's validity is in doubt because of the Romer decision. But the important question you raise still has not been directly addressed by this court.

washingtonpost.com: Full text: Romer v. Evans (1996)

washingtonpost.com: Can you talk about the facts of the school prayer case? It's particularly interesting that it comes from Texas, where high school football has been characterized by some as almost a religion (pun intended, but no disrespect).

Joan Biskupic: Indeed. In fact many Texans were particularly perturbed that a lower court judge specifically said that football games were not "solemn" occasions, like graduations, where courts have allowed some student-led prayer. So all eyes are on the Lone Star state for this case, which will specifically address whether students can lead prayers over the public address system before games. A lower court said that violates the constitutional requirement for separation of church and state. Interestingly, though, the lower court case also involved a challenge to a school district's graduation prayer policy. And the justices specifically EXCLUDED that part of the question from the case when they granted the appeal. So, while I think we're in for a definite answer about gridiron prayer, the more important question (forgive me, Texas) about benedictions and invocations at graduation and other school assemblies may remain murky at the end of the term.

D.C.: The Hardwick decision, along with the Anita Bryant madness, served as catalysts for the modern GLBT rights movement. Lately state supreme courts have been overturning sodomy laws but if a state supreme court, such as Texas' perhaps, upholds a sodomy statute, might the court revisit Hardwick? I know that the court doesn't revisit decisions or second-guess itself much, but it also generally recognizes "when times have changed."

Joan Biskupic: I doubt that the 1986 Bowers v. Hardwick decision will be directly revisited. Mostly because states simply aren't enforcing these statutes against consensual adult conduct. Some of the pro-gay advocates have been systematically challenging the laws either through state courts or legislatures to get them removed from the book. Twenty years ago, virtually every state had some anti-sodomy law... now I think fewer than 15 do.

washingtonpost.com: Full text of Bowers v. Hardwick (1986), referenced above.

Chevy Chase, Md.: What constitutional basis is there for claiming those who engage is a particular type of sexual act cannot be discriminated against? As a society we have always discriminated against certain behaviors. If the Boy Scouts can't discriminate against homosexuals then should they be able to discriminate against racists?

washingtonpost.com: A question that came in during a past discussion that we weren't able to address before.

Joan Biskupic: This sentiment isn't uncommon, and we wanted to address it because the New Jersey court that barred the Scouts from discriminating last August had to cross this bridge. The Chevy Chase reader effectively compares the conduct of homosexuals to the conduct of racists. Increasingly courts are rejecting such implications. In the New Jersey case one of the judges specifically wrote that because a person is homosexual he is not more or less likely to be moral than a person who is heterosexual.

Cary, N.C.: One of the arguments used against protection based on sexual orientation is that it is both a choice and an activity.

But that argument can also be made for religion, which is also (in general) both a choice and an activity.

Does that similarity hold any weight with the court, or does the fact that religion is specifically mentioned in the Constitution (and sexual orientation isn't) trump it?

Joan Biskupic: The reference to the Constitution makes a good point. The court has often noted that discrimination based on the color of one's skin, or religion (as you mention), is part of the Constitution so there's a greater mandate to protect people on these bases. ... And this goes to a fundamental issue with this court. Many of the justices use the Constitution as written as a starting (and sometimes, ending) point. More liberal justices believe that the document evolves with our times.

Fairfax, Va.: How can one justify special laws or acts of special treatment in favor of gays and lesbians? Isn't it saying that a criminal act done against a gay or a lesbian is more severe then doing that same criminal act against a heterosexual? Fighting bias with bias is taking the blindfold off of "our lady justice."

Joan Biskupic: Your reference to "special laws ... or special treatment" hits a hot button in this debate. Some people argue that what gay people are asking for it not anything special but rather "equal" treatment. ... I expect someone from that side to jump in soon.

Arlington, Va.: I'm not certain whether gay marriage is the particular answer. I think that the question is economic, e.g., health benefits, inheritance, tax benefits. How is the law doing on the economic issues since the the legal ones are extremely polarizing?

washingtonpost.com: Increasingly, companies – though not the government – recognize domestic partnerships in benefits, etc. Is this a de facto acceptance of "marriage" without the legal blessing?

Joan Biskupic: To answer both of you at the same time: I don't think this is "de facto" marriage, because there are still so many other benefits and responsibilities (beyond insurance coverage) that come with the marriage contract. My sense is that the gay community is divided over how much to push for gay marriage. I think some fear that the country isn't ready for it and that it will only create a backlash to lesbians and gay men. ... Overall, on economic issues and job discrimination, municipalities, big companies and the courts, more and more are treating homosexual couples like heterosexual couples.

Chicago, Ill.: I guess I am having a lot of trouble with the "gay rights" issue. I do not think that people who are gay-lesbian, or minorities for that matter, should have any more rights than any one else. I know the rhetoric that a gay rights advocate would state to me on this issue. Do you see a trend in the court on not allowing certain groups to have special rights?

Joan Biskupic: The courts, too, resist the idea of any "special rights," and when gay people have prevailed is when they have convinced a judge or jury that all they are asking is to be treated like anyone else, and not attacked or discriminated against on the basis of sexual orientation.

Washington, D.C.: Does the Supreme Court's recent "leaving alone" of the Massachusetts verdict indicate that this court might be more progressive on GLBT rights than court-watchers (such as, oh, you!) had expected? Or is the case an aberration or none of the above?

Joan Biskupic: None of the above. Unfortunately, when the court denies a petition, it doesn't give its reasons. And in the Massachusetts case, there could have been procedural reasons for declining to address the lower-court ruling. THe Massachusetts high court had declared a lesbian woman a "de facto" parent of her former partner's son. But the larger custody/visitation rights case is ongoing. I still think this is an area that the justices would enter only tentatively... But we'll see. And as a reporter, I'd love to see them get more into it.

Bowie, Md.: I am bothered by the fact that many, who support the mainstreaming of homosexuality, state as fact, that homosexuality is genetic.

The truth is, this is incorrect. While scientists have found some similarities in the genes of homosexuals, they have come up short of finding THE gene that "causes" homosexuality. They also have found the similarities in heterosexuals as well.

Do you believe that the move toward mainstreaming is being facilitated, at least in part, by the inaccurate (if not outright false) data that is being reported by these groups? Second, should the question of whether or not it is genetic, have any bearing on how society deals with it? After all, some scientists believe that pedophilia is caused by genetics, does this mean we should "mainstream" that?

Joan Biskupic: I'm sure you'd get lots of arguments on those points from several quarters.

Mt. Rainier, Md.: Okay, I'll say it. I don't think it's a special privilege to be able to keep my job or keep my apartment if I'm gay. If I'm straight, no one will deny me either. All gays are asking for in this instance is the same right that other people have already.

Joan Biskupic: Whew. Thanks for joining in. I get lots of mail and usually lots of comments here from people complaining about any references to "special rights." But I seem to be hearing more from the other side today.

Cary, N.C.: It seems to me that the hate crimes penalties are nothing new.

We already recognize a difference based on intent. Hitting a child in the streets with your car is treated considerably differently if the child ran in front of traffic than it is if the driver aimed to strike a child playing.

Given the "rational basis" standard, it seems that there is plenty of rational basis in assuming that someone who chooses to assault (or kill) people based on race, religion, gender, sexual orientation, or any other identifiable characteristic is far more of a threat to society than someone who (for example) just lost their temper in a specific situation. Or am I missing something here?

Joan Biskupic: Not really. The courts have upheld hate-crimes penalties and "intent" has always been an important element in criminal law.

Washington: I don't know if this is just my perception or the way it is, but it seems like there are lots of internet-related and GLBT-related cases in the news. Will these be the two biggest areas the court will deal with in the next decade or are there other areas that will be more prominent or more frequently the subjects of court decisions?

Joan Biskupic: You've put your finger on two of the hottest areas of the law ... I think that we'll increasingly see Internet related cases at the Supreme Court. Ditto with gay rights. You asked about other areas, and I think related medical and high-technology cases will also be a staple of the next decade.

Mt. Rainier, Md.: I resent the comparison between ANY sexual behavior between consenting adults and pedophilia. Society has rightfully said that a child cannot make this kind of decision and should not be coerced into such activity. Protecting children from adults is one thing, protecting adults from themselves is absolutely another.

Joan Biskupic: I'll let that comment stand for itself.

Arlington, Va.: There seems to be a great deal of confusion about what "sexual orientation" exactly describes, i.e. is it "conduct" or a "characteristic"?

It seems to me that making one's sexual orientation known is completely different than engaging in conduct. Indeed, one can be gay or straight regardless of one's "conduct."

In other words, when people argue that gay people just want protection for their "conduct," they imply that being gay is the same thing as engaging in conduct, which is obviously not the case. For example, I'm gay, yet the only conduct I'm engaging in now is surfing the Web.

According to the "conduct" people's argument, I'm not really gay at any given time unless I'm engaging in homosexual activity. So of course I would agree that if someone is in the office "engaging in conduct," that would be a valid reason to discriminate – the workplace is no place for such private behavior.

However, unless my employer peeps in my window to confirm that I engage in certain conduct, how on earth can my employer's knowing my sexual orientation tell him or her ANYTHING about my personal conduct? What if I'm celibate, or just unlucky in love, or uninterested in dating? Or what if I'm bisexual but I'm dating a member of the opposite sex, engaging only in presumably "acceptable" conduct? Where are the grounds for discrimination in those cases?

In short, how can arguments based on "conduct" carry any legal weight, since in order to confirm the conduct -which as you pointed out is technically legal in most states now-, employers or landlords or whoever would have to go to the trouble of documenting my conduct at the expense of my privacy?

Joan Biskupic: Long question ... and the short answer is that it all depends on what's at stake in the dispute. The Supreme Court said in the Romer case that government can't discriminate based on an "animus toward the class." But is it animus that leads states not to allow same-sex couples to marry? Does that open the door to more conduct-related issues? Unfortunately none of these questions is easy, given past court cases, long-held American traditions and the reality that it all touches on personal beliefs involving religion, families, sexuality.

Fairfax, Va.: Say a state (like Vermont or Hawaii) legalizes same sex marriages, can the Supreme Court overturn that as being unconstitutional?

Joan Biskupic: Not if it's based on a state constitution and the state's own civil rights protections. The high court generally couldn't interfere with marriage policy within the state. BUT, where the justices might get involved is if another state, say Virginia or Maryland, said it didn't have to honor the marriage from Vermont or Hawaii.

Washington, D.C.: I'm responding to the person who asked about "special laws" punishing "criminal act[s] done against a gay or a lesbian."

Let me clarify: I think gay people (of which I'm one) aren't asking for laws to punish ANY criminal act perpetrated against them. Like if I get mugged randomly on the street and they catch the guy, I wouldn't dream of saying that he should get a tougher sentence simply because I'm gay.

That goes for random murders too, such as the Starbucks shooting in 1997. One of the victims was a lesbian, and the Washington Blade (local gay paper) wondered if she had been a target of an anti-gay crime, but the evidence didn't bear it out. So I and the people I know just chalked it up to unfortunate, random violence.

It's the crimes that specifically target people because of sexual orientation that many people want. Mostly because they are excessive in their cruelty and brutality, such as the stabbing and incineration of a man in Alabama. Or the beating to a bloody pulp of a naval sailor that was so severe that his own mother couldn't identify him by his face (which had the attackers' shoe prints on it), but only by his tattoos.

And many straight people get beaten up too, just because they happen to be walking in a gay area of town, or "look gay," or because they are leaving a gay bar with a gay friend or something. This is not uncommon.

It's those specific kinds of targeting crimes which hate crimes laws are meant to address. And since they punish crimes based on "sexual orientation" – not "crimes against gay people" – they protect everyone of all sexual orientations. Straight people too.

Joan Biskupic: These remarks and the counter ones that will follow stand alone.

Bowie, Md.: It is obvious that you have a rather slanted opinion about this discussion.

Silly me, I thought this was an area that was actually interested in debate. I guess this is yet another pro-gay forum that has all the answers, huh?

Why are you so afraid to actually respond to my points? Do you dispute my statement regarding genetics-it wasn't off the top of my head, check the AMA-? Do you agree or deny that there are inaccurate claims? Come on, if you're going to take a position then defend it already. Why wait for "others" to argue it for you?

Sorry to have bothered you.

washingtonpost.com: This is a moderated discussion of issues and ideas in a question-and-answer format. Washingtonpost.com is in the process of putting up message boards for open debate among our readers, and we welcome it. We take our responsibilities toward fairness and libel very seriously.

Joan Biskupic: See the comments addressed to the previous reader. ... AND for all of you who might not be regulars to these Friday discussions, I usually make comments after most of the remarks, but every now and then, it's nice to let people have at each other... You should see what happens when I talk about guns and the Second amendment.

Chicago, Ill.: Do you know of any indication that the court any time soon will delineate limits upon the use by appellate courts of unpublished orders to resolve appeals? I'm about to file a certiorari petition that argues that a federal circuit court of appeals used the device of unpublished order to resolve a particular appeal in order to markedly deviate from long-settled law of the circuit without actually altering the law of the circuit to conform with the court's holding in that case. My petition argues that this violates the Fifth Amendment's Due Process Clause, particularly its Equal Protection component, and that a conflict between the published and unpublished law of a circuit is as significant as a conflict among the circuits. Does this sound to you like something the court may actually address?

Joan Biskupic: Wow, a sane, reasonable question off-topic. It's hard to say whether the court is troubled by the lack of unpublished appeals court orders. I've heard some parties to a dispute complain but I've seen nothing from high court that would lead me to think they believe it's a problem.

Fairfax, Va.: I thought that if one state said a couple was married, all states had to accept that. I mean could one state all of a sudden decide that interracial or interreligious marriages performed in other states didn't have to be accepted in there state?

Joan Biskupic: You're right that states generally cannot reject a marriage from another state. But because of the activity in Hawaii and Vermont, several states in recent years have passed legislation specifically saying they would not accept a marriage between two women or between two men. This goes to something called the Full Faith and Credit Clause, which requires each state to treat as legally binding the public acts and records of the other states. The Supreme Court would have to resolve whether Virginia could reject a Hawaiian same-sex marriage, if it ever came to that.

Washington, D.C.: If Hawaii (or any other state) allows same sex marriages to be legal, don't all other states have to accept that couple as legally married. I thought there was some law about this – created back when some state considered interracial marriages to be legal, but others did not.

I applaud Hawaii's courage in looking at this issue, but how will it affect other states' laws or the federal laws?

Joan Biskupic: See my answer above... and right now the clause generally does mean that a marriage in one state is legit in another. Same with a divorce. But, the full faith and credit clause has never been tested in a gay-rights context.

Bowie, Md.: To Mount Ranier,

It might surprise you to find out that several states support the right for an adult to marry a 15-year-old (the age that many states still consider a child).

And anyway, who are you to say what is right and wrong for someone else? To you, marrying a child is wrong, and should be against the law. Why? Who are you to judge? Are these people hurting YOU in any way?

The fact is, we make "judgments" everyday. And the implication, by homosexual advocates, that they are being unduly targeted, is just simply wrong.

Joan Biskupic: OK, I'm going to let Bowie and Mount Ranier have one more comment, then that's it. I hope you guys don't know each other.

Mt. Rainier, Md.: The article in the Post (two days ago?) on the Canadian Boy Scout council's decision to all gay boys in the Scouts points out an attitude that I think Americans should seriously consider. The polls say that Canadians as frequently as Americans find homosexuality distasteful/sinful BUT they consider this a private decision up to the individual so have not made divisive campaigns against gays.

Joan Biskupic: See above.

Springfield, Va.: If the Supreme Court gets involved in the same sex marriage issue could this then open the door to look again at the polygamy issue?

Joan Biskupic: I doubt it.

Charlottesville, Va.: What do you believe is the trend of jurisprudence that the court is likely to follow concerning the issue of federalism, including such cases as U.S. v. Morrison that is presently on the docket.

washingtonpost.com: More information on U.S. v. Morrison is available in our court resources section.

Joan Biskupic: Thank you for being patient, Charlottesville. I think this court, the strong five-justice majority, will continue to roll back federal power and to give states more autonomy and authority. The U.S. v. Morrison case will be argued on Jan. 11... and that one will test whether Congress had the authority to pass a law protecting women against violence in local crimes. .... This states-rights, federalism battle is the Rehnquist Court's passion.

Joan Biskupic: That's it for today. Thanks to all who participated. And, for those who sent questions off the gay-rights topic and didn't get answers, I'll try to answer some of those in upcoming weeks. .... But we won't be here next Friday. All the online chats for that day are canceled so that we all can continue eating turkey left-overs, cleaning up the kitchen, etc. But watch the court the following week for a new round of oral arguments. On Wednesday, Dec. 1, the court takes up a big cigarette dispute, testing whether the FDA can regulate tobacco as a drug. A hot one. Happy Thanksgiving.

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