High Court's Double Offensive in the Culture War

Author: Russell Shaw

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, , 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, , 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.


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.

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, , 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