High Court's Double Offensive in the Culture War
Why two recent rulings advanced gay rights and extreme feminism at
the expense of traditional values
by Russell Shaw
Siding with homosexuals and radical feminists, the Supreme Court
again has shown that it is a serious combatant in the culture war.
Two rulings redolent with political correctness near the end of
its 1995-96 term came close to saying traditional views about sex
are unconstitutional.
In one case, <Romer vs. Evans>, the court ruled 6-3 that Colorado
voters did not have the right to amend their own state
constitution to bar special legislation favoring gays.
In the second case, <United States vs. Virginia>, it held 7-1 that
the Virginia Military Institute cannot continue admitting only
male students and remain a public institution.
Supposedly underlying both decisions was an equal-treatment
rationale: in the absence of compelling reasons, government may
not use sex as a basis for treating different people differently.
But there is a paradox-even a contradiction-in this: the Colorado
gay-rights case gave the Supreme Court's blessing to special laws
granting homosexuals as such protections and entitlements.
This strongly suggests that the real, though unacknowledged and
perhaps unrecognized, motive in both cases was not so much a
desire for equal treatment of diverse groups as the determination
of a majority of members of the Supreme Court to confer an aura of
constitutional principle upon certain contemporary secular ideas
about sexual roles and relationships.
SPECIAL PROTECTION
In the Colorado case, voters in 1992 approved a state-constitution
amendment, known as Amendment 2, after several communities in the
state-Denver, Aspen and Boulder-had adopted gay-rights ordinances.
The state Supreme Court ruled that Amendment 2 violates the
federal Constitution because it bars homosexuals from access to
the political process enjoyed by other groups.
Defenders of the measure argued, on the contrary, that Colorado's
homosexuals already possessed the same legal protections as
everybody else. They said Amendment 2 did no more than protect the
majority's right to maintain its values against an aggressive,
politically active minority seeking to impose cultural change on
its own behalf.
Justice Anthony Kennedy, writing for the Supreme Court majority,
agreed that Amendment 2 had to go. Kennedy made no reference to
the Supreme Court's last decision on gay-rights issues-a 1986
ruling upholding laws that make sodomy illegal.
Instead, he wrote that Amendment 2 "unfairly singles out a single
trait- homosexuality-and then denies them [homosexuals] the
possibility of legal protection across the board."
In the Virginia Military Institute case, by contrast, the 4th U.S.
Circuit Court of Appeals had ruled that Virginia adequately
responded to legal objections to its all-male military school by
establishing a similar program for women at a women's college in
the state. The state's per-pupil spending for students at both
schools was the same.
But Justice Ruth Bader Ginsburg wrote for the Supreme Court
majority that the military institute's all-male admission policy
violated the Constitution's equal protection guarantee as applied
to women.
Ginsburg, who made her reputation as a lawyer arguing feminist
causes, did not say the Constitution absolutely bars single-sex
state institutions and programs.
But she said that to pass constitutional muster, they must meet a
stiffer standard than heretofore: by showing an "exceedingly
persuasive justification," whatever that might be.
Dissenting in the Colorado gay-rights case were Chief Justice
William Rehnquist and Justices Antonin Scalia and Clarence Thomas.
Thomas did not take part in the Virginia Military Institute case
because his son is a student there, while Rehnquist joined the
majority in that case -though he wrote a separate concurring
opinion saying he agreed with the outcome but disagreed with
Ginsburg's reasoning.
Scalia wrote strong dissents in both cases. In the gay-rights
case, he called the action of Colorado voters in approving
Amendment 2 "eminently reasonable."
"It put directly, to all citizens of the state, the question:
Should homosexuality be given special protection? They answered
no. The court today asserts that this most democratic of
procedures is unconstitutional.... I think it is no business of
the courts (as opposed to the political branches) to take sides in
this culture war. But the court today has done so," he said.
Scalia's dissent in the military institute case was even tougher.
Calling the Supreme Court "most illiberal," he accused the
majority of having "embarked on a course of inscribing one after
another of the current preferences of the society (and in some
cases only the counter-majoritarian preferences of the society's
law-trained elite) into our Basic Law."
Clearly, both of these decisions have the effect of opening doors-
but doors to what? As far as gay rights are concerned, the answer
is not certain.
Homosexual demands for various rights-membership in the military
with no conditions relating to homosexual behavior attached, legal
recognition of homosexual unions as marriages-will probably come
before the Supreme Court fairly soon.
<Romer vs. Evans> does not guarantee any particular outcome. But
it does make it more likely that the Supreme Court will rule in
favor of gays on these questions when the time comes. If that
happens, of course, the gay-rights movement will have triumphed in
law, if not yet in the court of public opinion.
Secular feminism currently is further along on both fronts-law and
public opinion-than gay rights are, and the Virginia Military
Institute decision mainly adds impetus to what already was a fast-
moving campaign nearing the mopping-up stage.
Justice Ginsburg's opinion applies immediately only to state
institutions- private schools can stay all-male or all-female if
they wish.
But there's a catch: government money. Schools that receive it-and
at the higher-education level nearly all do-open themselves to
government pressure to conform on matters unrelated to the purpose
of the assistance itself.
Thus it is impossible to exclude the possibility that at some
point in the future even private, all-male and all-female schools
might find themselves targets of government coercion to go coed.
In recent years, the Supreme Court as presently constituted
repeatedly has been called conservative. Perhaps it really is -on
some issues-and by comparison with its predecessors during the
last 40 years.
But, as its major 1992 decision upholding the "right" to abortion,
<Planned Parenthood vs. Casey>, and now its rulings on gay rights
and feminist concerns make abundantly clear, this court is
anything but conservative on cultural issues with a moral
dimension. On the contrary, it now looks like an engine of radical
moral change.
Shaw is Our Sunday Visitor's Washington correspondent and director
of public information for the Knights of Columbus
Taken from the July 28, 1996 issue of "Catholic Twin Circle." For
subscriptions contact: Catholic Twin Circle, P.O. Box 260380,
Encino, CA 91426-0380, (800) 421-3230.
Copyright (c) 1996 EWTN
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