Natoma said:
Indeed I agree. However, the dissent of Scalia, Thomas, and Rehnquist, as well as the majority opinion of O'Connor, opened the door to not allow discrimination for adoption, marriage, gays in the military, etc. Why? They all stated that they did not like the use of the "Right to Privacy" by the majority (though O'Connor still voted to overturn the texas law, and all sodomy laws, despite her dislike of the reason).
They all stated that the sodomy laws were silly and could have been struck down by the Equal Protection Clause. It is that statement in their dissents that opens the door wide open for marriage rights, adoption rights, and openly serving gays in the military. Though gays in the military could be shot down on the same premise women in the military was shot down. The military used the same argument, i.e. the dissolution of unit cohesion and overall morality of the armed forces, when trying to keep women from serving. I'm not sure exactly what the legal impetus behind the removal of that military law was, but it could be struck down with that.
Even in dissent, those four opened the door wide open with regard to these other issues. That is what brightened my day most.
Not exactly. First off, this isn't the first time any part of the Court has found the equal protection clause to apply to homosexuals; IIRC that was
Romer v. Evans, which struck down a Colorado law essentially legalizing discrimination against gay people. So the door was already open somewhat.
Second, only Justice O'Connor ruled that the equal protection clause is enough to overturn sodomy laws directed specifically at gays. The majority implied that they probably would have if they hadn't used the broader privacy rationale instead, but since they did use the privacy argument they didn't discuss equal protection explicitly.
Third, the dissenters all found that the equal protection clause was
not sufficient to overturn the Texas law. Instead they made the same absurdist distinction we see some people making here, namely that the Texas law does not discriminate against homosexual
people--which would indeed violate equal protection--but rather only outlaws homosexual
conduct, whether performed by people whose actual sexual inclination is straight or gay. By this "reasoning", gay men
do have the right to get married, so long as it's to a woman.
Of the dissenters, Justice Thomas (only) did issue an extra opinion noting that he indeed found the Texas law "uncommonly silly", and that were he a Texas legislator, he would vote to repeal it. But that he didn't think the Court had a constitutional reason to strike it down. Someone with this position might indeed support gay marriage (although I doubt Thomas does), but is certainly not going to rule that the Constitution mandates it.
Fourth, Justice O'Connor's opinion--the only one holding that the Texas law was unconstitutional on equal protection grounds--specifically argued that gay marriage bans would not necessarily be illegal on the same grounds. As with all rights in the Constitution, the equal protection clause is not absolute. Instead, it can be overruled provided the rule in question meets a certain test, in this case the "rational basis" test: that is, the State can make a law that would seem to provide one group with unequal protections, so long as there is a "rational basis" for drawing the disctinction where the law does. O'Connor held that there was no rational basis for making a gay-straight distinction with regard to sodomy. She did not, however, imply that there was no rational basis for making the distinction when it came to marriage. Moreover, she suggested a possible rational basis, namely "to preserve the traditional definition of marriage".
Now, O'Connor's opinion does go farther in applying the equal protection clause to homosexuals than any previous decision. So does the implication (although again it was not made explicit and thus can't be counted on as precedent) that the majority would have done the same thing. So does the majority opinion's strong language about the rights and dignity of homosexuals, which
is precedent.
The door has been opened
further. But was not completely shut before, and it is not open nearly wide enough for gay marriage to get through. Yet.
Frankly, realistically, on big cultural issues like this one, the Court acts to ratify an emerging consensus among the states. Even its most radical decisions--like
Roe or
Brown--only imposed on all states a policy that was already intact in many if not most. There are as of yet no states that recognize gay marriage, and only one that recognizes gay civil unions. I think the Court will eventually find a right to gay marriage, but only after at least a handful--if not a large minority--of states have allowed gay marriage on their own and proven by their example that the ridiculous effects predicted by those who oppose gay marriage will not come to pass. (Also the example of foreign countries that recognize gay marriages will help.)
As for women in the military: I'm not aware of the history on that, but I'm pretty sure the policy was decided either within the military itself or by the military's civilian leadership in the executive branch (i.e. the President, Secretary of Defense, etc.). I'm fairly certain the Supreme Court had nothing to do with it.
