LeftOut
by Daryl Moore

40 More Years in the Closet?
You may be voting for president, but it's the Supreme Court that really matters.

On November 7, gays and lesbians will help decide who will be the next president of the United States of America. Of course, this decision is an important one. The reason our decision is so important is not what our next president will do about social security, the budget surplus, or education. It's not even about who would be more gay-friendly, who would support hate-crimes legislation, or who might lift the ban on gays and lesbians serving openly in the U.S. military. While important, each of these issues-if handled badly-could be remedied by the next president and Congress.

Our decision is important because the next president we elect will decide who will serve on the United States Supreme Court for the next 30 to 40 years. And the question is: How many appointments to the United States Supreme Court will the next president of the United States get?

Justice John Paul Stevens is 80 years old; Justice Sandra Day O'Connor is 70; and Justice Ruth Bader Ginsburg is 67. Justice O'Connor has had breast cancer. Justice Ginsburg was treated for colon cancer just last year. In other words, four years from now, one or more of these individuals will likely be gone.

Two of the three (Stevens and Ginsburg) have ruled favorably on issues that affect gays and lesbians. The other (O'Connor) has been a swing vote, supporting gay and lesbian rights at some times, but not others. To consider the impact of any of these individuals' leaving, we need only consider two recent decisions: Boy Scouts of America v. Dale; and Romer v. Evans.

In Boy Scouts v. Dale, a majority of the Supreme Court held that the Boy Scouts could exclude homosexuals from serving as scout leaders. This was a 5-4 decision. If O'Connor had voted differently, the Boy Scouts of America would be a little more diverse.

In Romer v. Evans, a majority of the Supreme Court held unconstitutional Colorado's "Amendment 2", which invalidated any legislative, executive, or judicial action designed to protect gays or lesbians from discrimination. This was a 6-3 decision. If Stevens and Ginsburg had not been there, states might now be free to ban nondiscrimination laws.

So when we step into the last American closet-the voting booth-we need to remember that during the next four years, one to three new justices appointed by our next president might be asked to consider one or all of the following: (1) whether the Defense of Marriage Act (DOMA) violates the Full Faith and Credit Clause of the United States Constitution; (2) whether the "Don't Ask, Don't Tell" policy of the U.S. military violates the First Amendment guarantee of freedom of speech; and (3) whether a lesbian can be denied custody of her child solely because of her sexual orientation.

We can all argue about whether Gore or Bush will do a better job with the economy, foreign affairs, and social security. But when it comes to whether Gore or Bush is more likely to appoint judges to the Supreme Court who believe that the Equal Protection Clause of the Fourteenth Amendment guarantees protection for all-not just all heterosexuals-there is no real debate.

Why? Because Gore has expressly stated that he supports the Employment Non-Discrimination Act (ENDA). He's spoken at the Human Rights Campaign dinner in Washington. He opposes the "don't ask, don't tell" policy and supports lifting the ban on gays and lesbians in the military entirely. And, he supports hate-crimes legislation that includes the term "sexual orientation." Does anyone really wonder whether he will appoint judges who believe that gays and lesbians deserve constitutional protection from discrimination, just like women and racial minorities have?

On the other hand, Bush has promised that he will not use any litmus test (i.e., abortion) when considering judicial appointments. He's also said, however, that he would nominate only "strict constructionists," like Justices Antonin Scalia and Clarence Thomas. These two have consistently voted against civil rights protections for gays and lesbians. And, it was the "strict constructionists" in Bowers v. Hardwick that held "there is no fundamental right to engage in deviant (i.e., homosexual) sexual behavior" when they upheld the constitutionality of Georgia's sodomy statute.

If Stevens, Ginsburg, or even O'Connor retires during the next four years, we cannot afford to allow "President Bush" to appoint another Clarence Thomas, who is now only 52 years old and who might remain on the court for the next quarter century. We cannot afford another Antonin Scalia, who with two new Bush appointees, would not be an angry voice of dissent on a moderate court, but the loud voice of a majority unafraid to pronounce that gays and lesbians are "deviants" unworthy of constitutional protection.

This election is about more than the economy, prescription drugs, and education. This election is about who will pick the judges that decide whether it will be a better America for all, or a better America for all but gays and lesbians. So when you step into the last American closet on Tuesday, November 7, don't just think about the next four years. Think about the next 40.

Writing from the liberal end of the spectrum, Houston attorney Daryl Moore has a general practice and is board-certified in civil appellate law. He can be reached at DarylMoore@outsmartmagazine.com.