Jul 15, 2005  |  By: EARTHA JANE MELZE  | COMMENTS     

As the nation focuses on who will fill the Supreme Court vacancy created by the retirement of Justice Sandra Day O’Connor — and the potential retirement of Chief Justice William Rehnquist — some court observers and gay rights advocates say that future Supreme Court justices’ views on reproductive choice and church/state separation are important to the future of gay civil rights.

Rehnquist was hospitalized on Wednesday, fueling rumors that the ailing justice will soon retire. He has battled thyroid cancer for most of the past year.

In the last few years, gay and lesbian rights have made great advances under the law, court observers said, but if the Supreme Court gains one or two new justices who don’t subscribe to the judicial philosophy underpinning those advances, the recent gains could be reversed.

In the Lawrence vs. Texas decision that decriminalized sodomy, five justices held that criminalizing private consensual adult sex violated the Constitution’s 14th Amendment guarantee of liberty.

“The issues that affect the gay community are not separated off from all the other legal issues that come before the court,” said Jon Davidson, legal director for Lambda Legal. “In Lawrence, the court relied on previous decisions on reproductive freedom. O’Connor has been one of the key votes for retaining Roe vs. Wade … if we lose choice we lose some of the underpinnings for some of the liberty rights we have gained.”

The liberty that the court talked about in Lawrence was the liberty to make your own personal decisions, like who you have sex with and who would become your family, said Lara Schwartz, senior legislative counsel for the Human Rights Campaign.

“The court made it clear that this was in the tradition of Roe vs. Wade and Griswold — the 1965 case which overturned a law that made it criminal for doctors to provide birth control, even to married people. It is the anchor for our understanding of liberty,” Schwarz said. “That there is a line beyond which the government is not allowed to cross, it was born in Griswold, expanded in Roe and finally reaches gay people in Lawrence.”

The parameters for privacy in personal sexual matters will be taken up by the Supreme Court this fall when justices consider the case of Ayotte vs. Planned Parenthood. The case involves a New Hampshire law that restricts access to abortion by requiring parental notification for minors seeking abortions.

“Whenever you are challenging an abortion law and the court has the opportunity to use the power of the state to interfere with a person’s personal choice … Roe can be narrowed,” Schwartz said. “And erosions of Roe do matter because the basic principle is that people have certain liberties, such as what you do with your body, that is going to have big implications for the GLBT community.”

Church & state issues
O’Connor was also key in cases dealing with the separation of church and state and was part of the majority that recently held that government neutrality toward religion forbids allowing the Ten Commandments to be displayed in court houses.

If the balance of thought on the separation of church and state shifts, Davidson said, we will see further blurring of the lines between church and state, which is frequently not good for the gay community given the way that religion has been used to discriminate against gay men and lesbians.

The Alliance Defense Fund is involved in several cases in which Christian student groups are arguing that they should be exempt from non-discrimination policies and should not be excluded from financial support from their schools.

“We have around 10 cases at federal district court level, and we have cases all through the country,” Jeremy Tedesco, litigation staff counsel for the Alliance Defense Fund said. Tedesco said that if the federal circuit courts decide the cases differently, he believes it is “absolutely likely” that the Supreme Court will take on this issue.

If people are allowed to use religion to get around anti-discrimination policies, Schwartz said, we could see a dismantling of such policies, which are key protections for gay men and lesbians.

President Bush has said that he will nominate a Supreme Court justice who strictly interprets the Constitution.

This is code language for taking away liberties already recognized by the courts, Schwartz said.

Strict constitutionalists argue that people only have the rights explicitly mentioned in the constitution.

The Constitution doesn’t contain the words “privacy” or “gay” or “birth control,” Schwartz said, and the Ninth Amendment to the Constitution says that just because a right is not specifically named does not ...