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In Texas ruling, Supreme Court denies refuge to bigots

With gay marriage legalized in parts of Canada, and the U.S. Supreme Court ruling last month that homosexual sex can no longer be made criminal, Virtuecrats are scrambling to build a legal Hadrian's Wall to keep their barbarians _ gay couples with formal status _ at bay.

On ABC's This Week, Senate Majority Leader Bill Frist said he would support an amendment to the Constitution barring gay marriage in the United States. He wants to muck up the Constitution with his special brand of intolerance because, as the Tennessee Republican said, marriage between a man and a woman "is a sacrament" reflecting our traditional "Western values."

Putting aside the inappropriateness of Frist's desire to park his religious sacraments in our civic documents, he is right when he says that rules keeping gay Americans from having their families formally recognized and protected by law reflect traditional values. They follow many other beloved national traditions that have been translated into law, such as segregation, antimiscegenation, limits on contraceptive use and on women from entering certain professions. We in the West have spent quite a bit of lawmaking energy telling others how to live their personal lives, though I think it is about time we dropped that particular "value" from our repertoire, don't you?

Justice Antonin Scalia's spluttering dissent in Lawrence vs. Texas, the case that struck down a Texas law prohibiting homosexual sodomy, repeats Frist's theme on the fall of Western civilization. It is full of dire predictions about the Gomorrah that this nation will become if legislatures are no longer able to pass morals laws. Scalia even expresses fear for the future sustainability of laws banning masturbation and fornication _ leading one to wonder whether he lives in this century.

Despite Scalia's fulminations, the near-term consequence of Lawrence is not going to be the court-ordered establishment of same-sex marriage. The majority ruling by the Reagan-appointed Justice Anthony Kennedy made clear that the case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." What is far more likely is that gays and lesbians will begin to get a fairer shake in questions of adoption, foster care, and custody and visitation rights to their children.

If moral disapproval of gay relationships can no longer be the basis for adverse government action, then the kinds of rantings found in an opinion by Alabama Supreme Court Chief Justice Roy Moore, denying a custody request by a lesbian mother, would no longer pass as valid jurisprudence. Last year, Moore _ who was just slapped down by a federal appellate court for refusing to remove a mega-ton monument of the Ten Commandments he had installed in the Alabama Supreme Court building _ said in a concurring opinion that "common law designates homosexuality as an inherent evil, and if a person openly engages in such a practice, that fact alone would render him or her an unfit parent."

In varying degrees that attitude has been reflected in rulings around the country. A 1996 case out of Florida stripped a lesbian mother of residential custody of her daughter, giving it instead to the father _ a man who had served 8 1/2 years in prison for murdering his first wife.

Florida is also in court defending its Anita Bryant-provoked prohibition on gays adopting children. The state is standing by the 1977 law even as it employs gays as foster parents and notes there are 3,400 children in foster care for whom it can't find adoptive parents.

The state is arguing before the 11th U.S. Circuit Court of Appeals that the ban should remain because there is "a legitimate governmental interest in expressing community disapproval of homosexuality in the context of child rearing," according to the state's brief.

But that won't cut it anymore. Lawrence said this type of bigotry may no longer find common cause with the law.

In particular, the ruling recognized the ancillary harms caused by the continued presence of sodomy laws, even when the laws themselves were rarely enforced. "When homosexual conduct is made criminal by the law of the state, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres," Kennedy wrote.

His ruling tells moralists-in-robes to leave their intolerances at home.

Frist, Scalia and other purveyors of the nanny state may believe the Lawrence case represents the abandonment of traditional values, but in fact it has breathed new life into far more vital American principles _ those of freedom, autonomy and limited government. These are the core Western values to which our Constitution subscribes. No tinkering necessary.

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