Sep 17, 2004  |  By: DYANA BAGBY  | COMMENTS     

In the 1960s, Americans were horrified by the images on their televisions of African-American protesters being attacked by police dogs. Today, conservatives admit disgust at viewing television coverage of gay couples lining up outside a San Francisco courthouse waiting to get married.

But while the black civil rights movement and the gay civil rights struggle may evoke different media images, there is one place where the two meet on the same battleground: in the courtroom.

The U.S. Supreme Court’s 1954 decision in Brown vs. Board of Education ordered desegregation of public schools, sparking many of the battles that defined the black civil rights movement of the late 1950s and early1960s.

In turn, the gay rights movement heralds the Supreme Court’s historic Lawrence vs. Texas decision in 2003 that struck down the nation’s remaining sodomy laws as one of its major victories.

“Certainly court decisions, from a public policy standpoint, have been the major movers and shakers [in the gay rights movement],” said Greg Nevins, a senior staff attorney for Lambda Legal Defense & Education Fund.

Lambda brought the sodomy challenge on behalf of two gay men arrested for sexual acts committed in one man’s bedroom.

The use of the courts by gay rights activists has been harshly criticized by President Bush and other conservatives, who accuse them of trying to subvert the will of the majority by finding sympathetic “activist judges” to create new rights.

“The gay rights movement, although it has a political component to it, has primarily turned into a legal battle because the political clout or support is not there,” said Mathew Staver, president and general counsel for the conservative Liberty Counsel. “When you want to go to the broader masses for support, you just don’t see it there.”

But Evan Wolfson, executive director of Freedom to Marry, said gay men and lesbians are being unfairly blamed for their proper use of America’s political system, and judges are being maligned for doing their job.

“Courts have a central, legitimate and vital role to play in ensuring Americans’ freedom, including during civil rights chapters in American history,” Wolfson said.

‘Judicial activism’
The Lawrence decision — along with the Massachusetts Supreme Judicial Court decision in November 2003 allowing gay couples to marry in the state — inspired the same public backlash that existed after the Supreme Court struck down school desegregation in Brown vs. Board of Education, Wolfson argued.
“Because of their own agenda and political purposes, the right wing has been attacking the courts and the attack today about gay people is part of that,” he said.

But Staver said that unlike gays prior to Lawrence, blacks had already achieved major victories through the legislative process before the Brown ruling came down. Staver specifically cited passage of the 15th Amendment, which extended to blacks the right to vote, as evidence that public opinion toward blacks was more tolerant than current public opinion toward gays.

“The overwhelming majority of people had to be in favor [of equal rights for blacks] otherwise you wouldn’t get a constitutional amendment, or the Civil Rights Act passed,” Staver said. “I don’t know how you can vote to give blacks the right to vote without having widespread support.

“You would not see that kind of support for homosexual rights,” Staver said.

Michael Klarman, a history professor at the University of Virginia, called Staver’s interpretation of public opinion toward rights for blacks “completely ahistorical,” and said modern conservatives who support the Brown decision would be at odds with their philosophical predecessors.

“If you’re a conservative today, of course you defend Brown, but 50 years ago, if you were a conservative in the South, you said the court was creating an interpretation of the 14th Amendment which didn’t historically exist,” said Klarman, author of “From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality.”

Klarman is also completing a paper comparing the Brown and Lawrence decisions and their impacts on the public discussion over civil rights.

Opponents of both cases responded using “exactly the same claims” about judges abusing their power and ignoring the majority’s will, he said.

After the Brown decision, “the court was ridiculed by white Southerners who said that they are un-elected judges, ignoring precedent, ignoring the historic understanding of the 14th Amendment, making the law ...