Washington Blade - August 03, 2007
Joshua Lynsen

But Jon Davidson, legal director at Lambda Legal Defense & Education Fund, said a U.S. Supreme Court case about the banner could have barred students from discussing gay issues.

The court was asked to grant administrators the power to bar any speech that conflicts with a school's mission.

"We were very afraid that a ruling like that would mean that students who wanted to form gay-supportive clubs or talk about why abstinence until marriage isn't a good policy, particularly when gay people can't get married, or talk about anything with regard to LGBT issues, that the school might say they would bar that because their policy is to encourage traditional families, or something like that," Davidson said.

The justices ruled 5-4 against the student before the Supreme Court ended its most recent term, but they rejected broader limitations on speech.

Still, Davidson said, the case shows how the Supreme Court has become more conservative under Chief Justice John Roberts and new Justice Samuel Alito, a development that bodes ill for gay Americans, he fears. Alito replaced Sandra Day O'Connor, viewed as a more moderate swing vote on the court.

"The court didn't hear gay-specific or HIV-specific cases this term, really, but what we saw was in case after case, they sided with the government as opposed to ordinary people, and they sided with big business as opposed to consumers or employees," he said. "And I think for most LGBT people, that's worrisome in terms of how they would rule in the future on gay- or HIV-related issues."

James Esseks, a gay litigation director for the American Civil Liberties Union, agreed.

"I'm not anxious to bring gay rights issues to this court," he said. "But I haven't been anxious to bring gay rights issues to the court for a good, long while."

Esseks said the current Supreme Court is much different from the Supreme Court that granted civil rights victories to black Americans decades ago.

"You go back a ways - several decades - and the court was very much in the mode of protecting minorities from majority discrimination," he said. "It has become less and less willing to open up new categories that are protected under the Constitution."

Lost champion?

Also problematic in the court's last term were increasingly conservative decisions by Justice Anthony Kennedy.

Esseks said the 71-year-old justice appointed by President Ronald Reagan has been the court's key supporter of gay rights, penning landmark rulings in 1996 and 2003 that advanced gay rights.

"He was the author of both the gay rights victories that we rely on in basically everything we do," Esseks said. "So in that sense, he has been our champion. He has recognized equal rights and privacy rights in a way that is quite significant and forms the foundation for all the work we do now in state and federal courts."

But in the "Bong Hits 4 Jesus" case and other recent cases, Kennedy has joined the court's conservative members.

"I think this means we have to consider carefully what are the best cases to go before the court," Davidson said.

Contenders include two challenges to the military's "Don't Ask, Don't Tell" policy that bars openly gay men and women from serving, the case of a woman who lost a job offer because she is transgender and efforts by school districts to stop anti-gay student speech.

Davidson and Esseks said cases that would ask the Supreme Court to recognize same-sex unions were intentionally left off that list.

"We have thought and continue to think that it makes sense to start in state courts and continue in state courts so we can build up a greater number of states that protect same-sex couples in one form or another - hopefully same-sex marriage - before we bring the matter before federal courts," Esseks said. "We've made the judgment that it's not worth the risk to present this issue in what we feel is a premature matter before the federal courts."

Davidson said Lambda Legal has ruled out fighting such a federal case merely on principle.

"I think principles are important, but so is being pragmatic," he said. "If you lose a case before the United States Supreme Court, it can take many decades to get it reversed."

More viable, Davidson said, are cases that seek to end "Don't Ask, Don't Tell."

One case brought by the ACLU and backed by Lambda Legal concerns former Air Force Maj. Margaret Witt, who was discharged last year after military officials in Seattle learned she is a lesbian.

Another case the Servicemembers Legal Defense Network is fighting in Boston similarly seeks to allow gays to serve openly in the military.

Davidson said these are the strongest cases brought against "Don't Ask, Don't Tell" since the Supreme Court ruled in 2003 that sodomy laws were unconstitutional. That development could help the challenges succeed where earlier efforts failed.

But he said the cases face an uphill battle to reach the Supreme Court.

"There are a lot of judges that feel like they should give special deference to military decisions - that courts should not interfere with the military's expertise on what they need to do to win wars and defend the country," Davidson said. "What gets argued is that may be true of certain things, but that shouldn't be true about certain basic personnel decisions, such as whether gay people should have to remain in the closet. There's no military expertise involved in that."

Still, Esseks said, the prospects for success in either case are uncertain before the Roberts court.

"I think that's a close one, but I'm not particularly optimistic," he said. "I think we would have a hard time with this issue on this court."

Another high court contender, the case of Houston resident Izza Lopez who lost a job offer after a business learned she is transgender, would test a federal law prohibiting sex discrimination in employment.

Esseks said the case, filed in December by Lambda Legal, and similar ones, raise important questions, but are only beginning their journey toward the Supreme Court.

"I think that's going to be an increasing focus of court attention, including potentially Supreme Court attention," he said, "but that could be in some cases years away."

Other battles brewing

The court is likely to first hear one of two cases involving efforts by school districts to stop anti-gay student speech.

In one case, a student at Poway High School in California was punished for wearing a shirt bearing the words "Homosexuality is shameful. Romans 1:27." The student was sent home.

In another case, a student at Neuqua Valley High School in Illinois was stopped from wearing a shirt with the words "Be Happy, Not Gay." A school official scribbled out the final two words.

The battle regarding the California student's shirt reached the Supreme Court earlier this year when justices were asked to review a lower court's ruling against the student. They voted 8-1 to void the ruling and the lower court was asked to reconsider the case.

Esseks said that case or the Illinois case could warrant a full hearing at the Supreme Court because the free-speech issues the cases raise need clarification.

"There's a line somewhere in there between what's OK to prohibit and what's not OK to prohibit because you have to allow students to express their views," he said. "That's an issue I could easily see getting to the United States Supreme Court because I could easily see the trial courts deciding the issue differently."

Davidson said it's difficult to predict how the high court would rule in such a case.

"I think those are among some of the toughest issues now," he said. "It's hard to say how the court would go."

Part of the reason for that, Davidson said, is because the court's two newest members, Roberts and Alito, did not adhere to precedent during the last term.

"Overall, one got the impression that Alito and Roberts were less concerned about precedent," he said, "and more concerned with sort of achieving more conservative results than I think they suggested at their [Senate confirmation] hearings."

Davidson said because the two justices appointed by President George Bush have veered the court to the right, Lambda Legal and other gay groups are hoping no other justices retire before Bush leaves office in January 2009.

"Everyone's hoping they stay in good health until the election and the election brings something new," he said. "Because if someone like Bush gets in office again, it could be generations before we see anything good from the Supreme Court."

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