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    Holding Court with Joan Biskupic

    Post Supreme Court reporter Joan Biskupic. (The Post)

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    Friday, August 20, 1999

    The recent ruling by the New Jersey Supreme Court favoring a gay man who was expelled by the Boy Scouts pushed the issue of gay rights and the government into the spotlight. This week, "Holding Court" focuses on gay rights, including the fallout over the New Jersey ruling and the ongoing Vermont case testing whether that state's constitution allows gay marriage.

    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.

    Biskupic answers your questions on legal affairs and the Supreme Court live Fridays at 10 a.m. EDT. The transcript follows: What's the latest on the Vermont case about gay marriage? Do you see this issue increasingly played out in the courts, particularly given Congress' activism with the Defense of Marriage Act?

    Joan Biskupic: In Vermont, three same-sex couples are suing the state because they were denied marriage licenses. The Vermont supreme court heard the case late last year, and a ruling is expected at any time now. ... But the issue of same-sex marriages could go national, and ultimately to the U.S. Supreme Court soon, if Vermont or any other state recognizes gay marriages and other states refuse to honor those when the couples move.

    The Defense of Marriage Act, which you mentioned, was passed by Congress in 1996, when Hawaii courts were looking at the question of same-sex marriage. The U.S. Constitution's full faith and credit clause generally requires states to accept unions made in other states. But the 1996 DOMA, as it is sometimes called, says states need not recognize any unions not between a man and woman. Whether that could block out-of-state gay marriages is subject to dispute.

    And for those of you just joining us, while Supreme Court is in recess, we're doing these weekly on-line columns around various legal themes. This week it's gay rights, a big cultural, political and legal dilemma, playing out in disputes over gay marriages and adoptions, military prohibitions on homosexuals, "domestic partner" benefits, and most recently, whether the Boy Scouts must admit people who are gay as members.

    Washington, D.C.: Given your knowledge of the current Supreme Court, if the Boy Scouts case recently decided by the New Jersey Supreme Court in favor of the plaintiff were to go before the Supreme Court in the next couple years, how do you suspect or predict they would rule? Thank you.

    Joan Biskupic: There are actually do questions here: Would the justices even take up the case (they reject most of the appeals that come their way) and if they take it, how would they rule. Hard to predict, but here are some of the considerations: Part of the New Jersey ruling was tied to state anti-discrimination law, and the New Jersey court would have the last word on that. The other part did address the Scouts' federal First Amendment argument. ... The U.S. Supreme Court ruled in 1984 that the Jaycees could not bar women based on a free association argument because it was such a broad, non-selective group. The New Jersey Supreme Court in its recent ruling relied on that 1984 decision, so if the New Jersey court properly interpreted it, the justices likely would extend their Jaycees ruling to the Scouts and side with James Dale, who was the man who brought the case. .... But it's not a foregone conclusion that a majority of the high court would agree with the New Jersey interpretation.

    Washington, D.C.: Even though many opponents of gay civil rights have sophisticated arguments against anti-discrimination laws, equal marriage rights, etc., do you think that these objections are ultimately based in prejudice? I mean, there have always been legal maneuverings to prevent religious and ethnic minorities from having the same civil rights majority groups take for granted. Can you comment on any similarities between current gay rights cases and past civil rights cases.

    P.S. As a gay man I am happy that the N.J. court recognized the bigotry behind the Scouts' actions, but at the same time I am uncomfortable with their broad interpretation of "public accommodation." I wouldn't be a bit surprised if the U.S. Supreme Court overturned their decision.

    Joan Biskupic: Interesting question from an interesting personal perspective. The Supreme Court itself has compared gay rights to civil rights and suggested in at least one case that opposition to homosexuals is based on prejudice. In the biggest court decision on the issue to date, the 1996 Romer v. Evans ruling, the majority opened its opinion with a reference to racism against blacks, the 1896 admonition by Justice John Marshall Harlan, that the Constitution "neither knows nor tolerates classes among citizens." The current court stressed that the Colorado law against gay people, which the justices struck down, seemed mostly motivated by animus toward them.

    Washington, D.C.: Are there any big gay rights cases making their way through the circuit courts right now?

    Joan Biskupic: The action is primarily in state courts, not federal courts, right now. And that's because so many of the questions revolve around family issues (adoption and parental rights) and so-called domestic partner benefits.

    Annandale, Va. : Do you think that the Supreme Court will ultimately have to decide the issue of same-sex marriages, or will that end up being a state-to-state issue?

    Joan Biskupic: For now, it is a state-by-state question, with the action mostly in Hawaii and Vermont. But as I mentioned at the start of today's session, the issue could go national if Vermont or any other state allows same-sex marriages and other states refuse to honor those. The Supreme Court would have to reconcile the Constitution's full faith and credit clause, as well as Congress's Defense of Marriage Act, which defines "marriage" as only the union between a man and woman.

    Washington, D.C.: Few cases in the last 25 years have generated as much controversy as Hardwick. Will the Court find a way (a topical case) to overturn its prior Hardwick mistake?

    Joan Biskupic: Some gay rights advocates argue that the 1996 Romer v. Evans case effectively overturned Hardwick – although the court itself never even referred to that ruling. For those of you who might not know it, the 1986 Bowers v. Hardwick ruling upheld Georgia's law against sodomy, including consensual sex between adult homosexuals. It was a 5-4, very controversial ruling. Since then several states have either removed such laws from the books, as they apply to consenting adults, or state courts have struck the laws down, based on state constitutional guarantees of personal liberty and privacy. However, many such sodomy prohibitions remain and this lingers as a controversial area of the law. You'll find the full text of Bowers v. Hardwick on the FindLaw Web site. Do you think a potential Supreme Court nominee's stance on gay rights will end up being the same sort of litmus test that a nominee's stance on abortion currently is?

    Joan Biskupic: As much as gay marriage and other homosexual issues have become a political flashpoint, like abortion, I don't think the subject lends itself –at this time – to a litmus test for judges. Even President Clinton, who is the most liberal president to date on gay rights, hasn't made it that big a part of his agenda or required his appointees to agree at all with him. ... Also, gay rights play out in a broader spectrum than abortion, from military policies to marriage.

    New York, N.Y.: Do you see any sweeping gay-rights rulings in the future? This Supreme Court seems to really like to interpret laws narrowly.

    Joan Biskupic: That's definitely true. These justices tend to take the narrowest path. Also, they seem to be in sync with middle America on a lot of their social rulings. So, in as much as gay rights have made tremendous headway in recent years, it doesn't seem that the country or the court itself is ready for a sweeping ruling that would, for example, end all discrimination against homosexuals, in the military, marriage, parental rights, etc.

    Oslo, Norway: What impact will the court's recent racial redistricting rulings have on the upcoming round of congressional districting?

    How do you see Justice O'Connor's future role in cases that involve affirmative districting?

    Have the court's post-Shaw rulings made it harder to uphold additional majority-minority districts? If so, what consequences will it have for the representation of racial minorities?

    Joan Biskupic: Hello Oslo! This question came in last week, and I didn't have time to answer it. But when you write from Norway, you get a second chance.

    So, yes indeed, the court's cases bringing new scrutiny to majority-minority districts have made it much harder for politicians to draw congressional maps and to specifically draw districts that benefit blacks and Hispanics. Justice O'Connor, who you rightly mention, has become the voice of the court on racial issues. She has written that "reapportionment is one area in which appearances do matter" and has articulated the court's policy against zig-zagging districts that appear to clump people together based on their race.

    For lots of reasons, state officials have tried to concentrate minority voters into districts to boost their voting strength. The original idea was to give minorities, long discriminated against at the polls, a stronger voice in the political process and a greater shot at electing one of their own. Civil rights advocates say the court's rulings in this area have hurt minority representation and will particularly hurt blacks and Hispanics in the redistricting that flows from the 2000 Census. But we'll have to see what happens in the 2002 congressional elections and whether minorities are set-back.

    New Orleans, La.: Regarding marriage you wrote:

    The Supreme Court would have to reconcile the Constitution's full faith and credit clause.

    Wouldn't they also have to address the fifth amendment, giving everyone the right to life, liberty and property?

    Has the Supreme Court ever ruled on the state supreme court decisions on marriage rights that lesbigaytrans Americans are not a protected class under the 14th amendment?

    Joan Biskupic: ... From Norway to New Orleans. You have a point about what grounds the court would rely on (or reject) when looking at gay marriage. And I do believe that any lawyers trying to defend same-sex unions would point to the Constitution's guarantees of personal liberty and privacy. The court has never addressed this in the gay marriage context, but it did when it looked at the Georgia sodomy law in 1986. And the court at that time said homosexuals have no such privacy rights.

    Bloomington N.Y.: Is there any clause in the United States Constitution stating or implying that the laws apply only to those people the majority approve of, accept, acknowledge or tolerate?

    If not, how can any court rule that civil rights are not unconditional?

    Joan Biskupic: No, the Constitution doesn't say that civil rights laws only apply to groups that have majority approval. But the Constitution also doesn't provide unqualified equal rights for all differences among people. If it did, government discrimination based on race would be on the same plane as discrimination based on hair color or height. The Supreme Court has interpreted equality guarantees as protecting classes of people in different ways. For example, racial differences get the most regard and protection; differences based on sex get slightly less. The court has also looked at bias based on nationality, age, disability and a host of other characteristics ... but it has never said where sexual orientation fits in.

    Falls Church, Va.: Do you know whether people who have had sex changes after they were in a heterosexual marriage have had troubles still being recognized as a married person? Have there been any cases or laws to address this?

    Joan Biskupic: That's a stumper. I don't know of any case on the subject.

    Washington, D.C.: Among those displeased with the N.J. decision, there is a presumption that because James Dale was discovered by local scout leadership to self-identify as gay - a status - that this must mean all sorts of things which people apparently imagine about his "behavior." Cal Thomas, for example, says "Why is it good for the Boy Scouts to be forced into accepting people who behave in ways judged to be bad by the organization's leadership..." I make this point as a former Cub Scout & Boy Scout who became aware of my same-sex attraction during my adolescent years in the organization, yet who did not act upon it until several years after I left the organization. This is not to suggest gay scouts should be celibate, I just find myself wondering about the use of this presumptuous word, "behavior."

    Now for my question – is there any language in the decision that helps lend legal clarity to the ongoing debate about sexual orientation as a bonified status – or "suspect class" – vs. merely a "behavior" – and why does it matter?

    Joan Biskupic: Thanks for the personal perspective. The New Jersey court stressed Dale's homosexual identification and status, rather than any behavior. It rejected negative stereotypes about gay scouts' behavior, and a concurring judge specifically wrote, "a lesbian or gay person, merely because he or she is homosexual, is not more or less likely to be moral than a person who is heterosexual."

    Richmond, Va.: Can you add some international perspective? What do you know about gay rights rulings in other countries around the world? Is the Christian right opposition that gays face here mirrored in other countries? Do other nations allow gay marriage or have controversies in their courts about discrimination, sexual harassment or domestic-partner benefits? Or is this a uniquely American phenomenon?

    Joan Biskupic: Good question. Although I don't have much of an answer beyond what little I've read in the foreign press: It doesn't seem to be a uniquely American dilemma, as much as sexuality, family and religion (all of which affect people's views on gay rights) are not uniquely American concerns.

    Washington, D.C.: Do you think that marriage rights for gays are harder to pass in the U.S. because gays are almost always associated with groups that include bisexuals, transsexuals, and transgenders?

    Considering what recently happened in Canada and their newly achieved rights for legal gay partnerships, I'd have to think some of our momentum gets lost with our association to less accepted groups.

    What do you think?

    Joan Biskupic: You have a point. Stereotypes loom large here. But I still think gay rights cut so deeply to the heart of how many Americans see themselves and their society that there are no easy resolutions. Just think of how far the country's come on the whole domestic partnership and same-sex union question. Two decades ago there was no legal recognition whatsoever (no insurance benefits) for homosexual relationships.

    Dupont Circle, D.C.: Hi Joan!

    Thanks for taking the time to deal with such a timely yet often ignored subject in mainstream media!

    As a younger (21) gay male who aspires to adopt one day, could you talk briefly about the legal issues that face gay men who want to adopt? Do the laws vary by state, and which states have the most lenient restrictions? Also, are gay couples usually favored over single gay men? Do discrimination issues come into play if and when adoption agencies refuse to let gays and lesbians adopt?


    Joan Biskupic: This is a state-law question. And I don't know which states might be more receptive to gay men adopting. But I'm remembering that about a year ago, New Jersey (same state as with Scouts) issued a favorable ruling for a pair of gay men.

    Vienna, Va.: What do you think about the Judge Judy show? Do the verdicts reflect real points of law or do they reflect, as I believe, the personal bias of the judge.

    Joan Biskupic: I've never seen the Judge Judy show. Sorry.

    Washington, D.C.: What do you think about rooting the debate over gay rights in the context of discrimination and not privacy, like abortion? I can see that it makes legal sense to place the issue on federal law footing and not a principle that might ultimately devolve into a state-by-state patchwork of laws.

    Joan Biskupic: Good question, and this court has been more receptive to arguments based on the constitutional right to equality, than to the more amorphous privacy right.

    There are lots more questions left pending, but our hour is up. I'll take up some of the left-overs next week, but also keep sending new questions that can be answered live. As we continue through the Supreme Court's summer recess, we'll stick to certain themes each week. (For those of you who have just joined us, we've addressed gun control and the Second Amendment; church and state dilemmas; large jury awards.) Why don't we make next week a catch-up session, and I'll specifically look for lingering questions on gay rights, guns (you can't believe the traffic on that!) and religion. Then in September we'll take on affirmative action and pending race cases; the Supreme Court press; and how the justices screen cases for the upcoming term. Thanks to all who participated. Great questions today – thanks to everyone who joined us. Join us again next Friday at 10 a.m. EDT for "Holding Court."

    Some Post stories addressing some of the issues discussed here today:
    Boy Scouts' Exclusion of Gays Is Illegal, Top N.J. Court Rules (August 5, 1999)
    Court Allows Ban on Gay Rights Laws (Oct. 14, 1998)
    Disability Law Covers HIV, Justices Hold (June 26, 1998)
    Key Case: Same-Sex Harassment (decided March 4, 1998)
    Court Says Law Covers Same-Sex Harassment (March 5, 1998)
    Justices Reject Case of Lesbian Denied State Job (January 13, 1998)
    Gay Marriage Is Allowed by Hawaii Court (December 4, 1996)
    Same-Sex Marriage Issue to Take Center Stage in Senate (September 3, 1996)
    Court Declares Gays Not Legally Different (May 22, 1996)
    Court Strikes Down Colorado's Anti-Gay Amendment (May 21, 1996)
    Atlanta Appeals Court Upholds Marriage Right of Gay Woman (December 22, 1995)
    Gay Rights Activists Seek a Supreme Court Test Case (December 19, 1993)

    © Copyright 1999 The Washington Post Company

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