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The Massachusetts Supreme Judicial Court’s Feb. 4 reaffirmation of its ruling in favor of same-sex marriage touched off a new wave of celebration among civil rights advocates that began last June with the U.S. Supreme Court’s gay rights decision in Lawrence v. Texas. But in spite of the Massachusetts ruling, it is becoming increasingly clear to advocates and critics alike that Lawrence has not launched a straight-line march toward expansion of gay rights through litigation. Recent lower court decisions in cases from Kansas and Florida that limit or criticize Lawrence are beginning to suggest a more complicated path ahead for gay rights advocates, with detours and reversals likely � along with victories like the one in Massachusetts. Other cases on the horizon, involving issues like gays in the military, a ban on the sale of sexual aids in Alabama, and even anti-polygamy laws in Utah, will also give lower court judges a chance to put their spin on Lawrence. Eventually, one or more of those cases will make it back to the Supreme Court, and some predict that the justices will feel compelled to speak again on gay rights. Depending on the Court’s composition when that new test arrives, it could reinforce � or weaken � Lawrence. “When you see things happening that don’t fit the paradigm of Lawrence, you begin to wonder if things were as positive as you thought,” says Paul Smith, the Jenner & Block partner who argued and won the case. “But we’ll see. There are so many positive and negative things happening. The picture changes every day. I would be surprised if the Supreme Court doesn’t step in again to say that nondiscrimination means nondiscrimination.” But critics of Lawrence are not so sure that is what the Court will say. “ Lawrence is already on shakier ground in these earlier stages than Roe v. Wade has ever been,” says Mathew Staver, president of Liberty Counsel, a gay rights opponent who filed briefs in Lawrence as well as in the Kansas and Florida cases decided in January. “A challenge to Lawrence will be back to the Supreme Court within two years, and the outcome will depend on who is on the Court at the time.” Lawrence v. Texas struck down that state’s criminal sodomy law as a due process violation that intrudes on the privacy of homosexuals. “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom,” wrote Justice Anthony Kennedy for the 5-4 majority. When it was handed down, gay rights advocates proclaimed a sweeping victory that gave them the foundation for a broad assault on laws treating homosexuals differently. The first post- Lawrence decision that seemed to justify that optimism came last November when the Massachusetts Supreme Judicial Court ruled in Goodridge v. Department of Public Health that the state’s bar against same-sex marriages could not be constitutionally justified. Lawrence was cited repeatedly in that decision. The Goodridge ruling gained even more potency Feb. 4 when the same Massachusetts court, in response to a question from the state Legislature, said that merely providing for “civil unions” for gay couples, rather than marriage, would not cure the constitutional defect. But in courtrooms outside Massachusetts, Lawrence has gotten considerably less judicial respect. The first setback came Jan. 28 when the U.S. Court of Appeals for the 11th Circuit upheld Florida’s outright ban on the adoption of children by sexually active gay men or women. The unanimous ruling in Lofton v. Secretary of the Department of Children and Family Services said the Lawrence ruling did not control the case because it targeted a criminal statute involving adults � not, as in Florida, a state privilege involving both adults and minors. But the 11th Circuit panel did not leave it there. Judge Stanley Birch’s opinion went on to criticize Lawrence in detail: “We are particularly hesitant to infer a new fundamental liberty interest from an opinion whose language and reasoning are inconsistent with standard fundamental-rights analysis.” Birch also said that Lawrence contained “virtually no inquiry” into whether the right at issue is deeply rooted in U.S. history. He also criticized the decision for failing to apply a “strict scrutiny” analysis to the Texas law. “The constitutional liberty interests on which the Court relied were invoked not with careful description but with sweeping generality,” the panel concluded. Two days later, on Jan. 30, came another ruling that gave Lawrence short shrift, this time from the Kansas Court of Appeals, an intermediate appellate court. The day after Lawrence was decided last June, the Supreme Court sent back to Kansas courts the case of Limon v. Kansas with instructions to consider it anew in light of Lawrence. Matthew Limon had been sentenced to 17 years in prison for having sex with a 14-year-old boy. Limon, who was 18 at the time, appealed the sentence, noting that under the state’s “Romeo and Juliet” law, his penalty would have been 15 times lighter if he’d had sex with a girl the same age. As instructed, the Kansas court took Lawrence into account � but said it did not apply. Echoing the 11th Circuit, the Kansas court noted that Lawrence involved adults, not minors. “Because the present case involved a 14-year-old developmentally disabled child, it is factually distinguishable from Lawrence,” wrote Kansas Appeals Judge Henry Green Jr. “ In addition, the present case is legally distinguishable from Lawrence.” The judge went on to point out that Limon had made an equal protection claim, not a due process challenge of the kind that Lawrence endorsed. The Kansas court also cited a paragraph in Kennedy’s majority ruling in Lawrence that Birch had quoted as well, and which could prove to be the mantra of judges who want to interpret the ruling narrowly: “The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” These limiting sentences did not deter the Massachusetts high court from applying Lawrence to recognition of same-sex marriage, and gay rights advocates hope that other courts will also view Lawrence expansively. “As with any breakthrough at the Supreme Court level, it takes some time for lower courts to fully assess the changes in the law and move beyond their assumptions and prejudices,” says Susan Sommer, a lawyer with Lambda Legal. “The Massachusetts court gets it, and others will too.” The next major appellate tests of the vitality of Lawrence may come soon. The U.S. Court of Appeals for the Armed Forces heard arguments last October in United States v. Marcum, which asks whether the military’s ban on same-sex sodomy is invalid in light of Lawrence. And a separate case before the U.S. Court of Federal Claims, Loomis v. United States, makes a broader Lawrence-related challenge to the “don’t ask, don’t tell” policy governing gays in the military. Plaintiff Steve Loomis is seeking to recover pension benefits he lost when he was discharged from the Army in 1997 for being gay. The Utah Supreme Court heard arguments last December in State v. Green, which included a Lawrence-related challenge to that state’s laws against polygamy. Lawyers for polygamist Tom Green asserted that under Lawrence, moral disapproval alone is not enough of a rationale for a state to prohibit a private relationship. And an 11th Circuit panel is expected to rule soon in Pryor v. Williams, in which Alabama’s attorney general is defending his state’s law that bans the sale of sexual aids or devices. Opponents of the law invoked Lawrence during oral arguments last September before an 11th Circuit panel that included Birch, the same judge who wrote last month’s Lofton decision. But the criticism already leveled at Lawrence has some analysts wondering whether the structure and language of Kennedy’s majority opinion invited attack. “What judges seem to be saying is that Justice Kennedy may be too rhetorically poetic for his own good,” says Emory University legal historian David Garrow, who has studied the Court’s privacy jurisprudence. “It may sound winsome as moral commentary, but as black-letter constitutional law, they are not impressed.” Garrow sees a historical parallel to the early judicial reaction to Lawrence. Nearly 50 years ago, in the aftermath of Brown v. Board of Education, which found segregated public schools unconstitutional, some federal and state judges interpreted Brown narrowly, ignored it, or even defied it � until the Court forcefully ruled in Cooper v. Aaron in 1958 that its Brown mandate could no longer be resisted. “We’re in very much a 1956-type historical setting, where the previous paradigm of inequality is suddenly upended and a surprising new mandate of full equality is ordered,” says Garrow. “It’s no surprise, now as 50 years ago, that there’s judicial resistance to the new mandate as well as resistance from other quarters.”

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