In
the
1960s,
Americans
were
horrified
by
the
images
on
their
televisions
of
African-American
protesters
being
attacked
by
police
dogs.
Today,
conservatives
admit
disgust
at
viewing
television
coverage
of
gay
couples
lining
up
outside
a
San
Francisco
courthouse
waiting
to
get
married.
But
while
the
black
civil
rights
movement
and
the
gay
civil
rights
struggle
may
evoke
different
media
images,
there
is
one
place
where
the
two
meet
on
the
same
battleground:
in
the
courtroom.
The
U.S.
Supreme
Court’s
1954
decision
in
Brown
vs.
Board
of
Education
ordered
desegregation
of
public
schools,
sparking
many
of
the
battles
that
defined
the
black
civil
rights
movement
of
the
late
1950s
and
early1960s.
In
turn,
the
gay
rights
movement
heralds
the
Supreme
Court’s
historic
Lawrence
vs.
Texas
decision
in
2003
that
struck
down
the
nation’s
remaining
sodomy
laws
as
one
of
its
major
victories.
“Certainly
court
decisions,
from
a
public
policy
standpoint,
have
been
the
major
movers
and
shakers
[in
the
gay
rights
movement],”
said
Greg
Nevins,
a
senior
staff
attorney
for
Lambda
Legal
Defense
&
Education
Fund.
Lambda
brought
the
sodomy
challenge
on
behalf
of
two
gay
men
arrested
for
sexual
acts
committed
in
one
man’s
bedroom.
The
use
of
the
courts
by
gay
rights
activists
has
been
harshly
criticized
by
President
Bush
and
other
conservatives,
who
accuse
them
of
trying
to
subvert
the
will
of
the
majority
by
finding
sympathetic
“activist
judges”
to
create
new
rights.
“The
gay
rights
movement,
although
it
has
a
political
component
to
it,
has
primarily
turned
into
a
legal
battle
because
the
political
clout
or
support
is
not
there,”
said
Mathew
Staver,
president
and
general
counsel
for
the
conservative
Liberty
Counsel.
“When
you
want
to
go
to
the
broader
masses
for
support,
you
just
don’t
see
it
there.”
But
Evan
Wolfson,
executive
director
of
Freedom
to
Marry,
said
gay
men
and
lesbians
are
being
unfairly
blamed
for
their
proper
use
of
America’s
political
system,
and
judges
are
being
maligned
for
doing
their
job.
“Courts
have
a
central,
legitimate
and
vital
role
to
play
in
ensuring
Americans’
freedom,
including
during
civil
rights
chapters
in
American
history,”
Wolfson
said.
The
Lawrence
decision
—
along
with
the
Massachusetts
Supreme
Judicial
Court
decision
in
November
2003
allowing
gay
couples
to
marry
in
the
state
—
inspired
the
same
public
backlash
that
existed
after
the
Supreme
Court
struck
down
school
desegregation
in
Brown
vs.
Board
of
Education,
Wolfson
argued.
“Because
of
their
own
agenda
and
political
purposes,
the
right
wing
has
been
attacking
the
courts
and
the
attack
today
about
gay
people
is
part
of
that,”
he
said.
But
Staver
said
that
unlike
gays
prior
to
Lawrence,
blacks
had
already
achieved
major
victories
through
the
legislative
process
before
the
Brown
ruling
came
down.
Staver
specifically
cited
passage
of
the
15th
Amendment,
which
extended
to
blacks
the
right
to
vote,
as
evidence
that
public
opinion
toward
blacks
was
more
tolerant
than
current
public
opinion
toward
gays.
“The
overwhelming
majority
of
people
had
to
be
in
favor
[of
equal
rights
for
blacks]
otherwise
you
wouldn’t
get
a
constitutional
amendment,
or
the
Civil
Rights
Act
passed,”
Staver
said.
“I
don’t
know
how
you
can
vote
to
give
blacks
the
right
to
vote
without
having
widespread
support.
“You
would
not
see
that
kind
of
support
for
homosexual
rights,”
Staver
said.
Michael
Klarman,
a
history
professor
at
the
University
of
Virginia,
called
Staver’s
interpretation
of
public
opinion
toward
rights
for
blacks
“completely
ahistorical,”
and
said
modern
conservatives
who
support
the
Brown
decision
would
be
at
odds
with
their
philosophical
predecessors.
“If
you’re
a
conservative
today,
of
course
you
defend
Brown,
but
50
years
ago,
if
you
were
a
conservative
in
the
South,
you
said
the
court
was
creating
an
interpretation
of
the
14th
Amendment
which
didn’t
historically
exist,”
said
Klarman,
author
of
“From
Jim
Crow
to
Civil
Rights:
The
Supreme
Court
and
the
Struggle
for
Racial
Equality.”
Klarman
is
also
completing
a
paper
comparing
the
Brown
and
Lawrence
decisions
and
their
impacts
on
the
public
discussion
over
civil
rights.
Opponents
of
both
cases
responded
using
“exactly
the
same
claims”
about
judges
abusing
their
power
and
ignoring
the
majority’s
will,
he
said.
After
the
Brown
decision,
“the
court
was
ridiculed
by
white
Southerners
who
said
that
they
are
un-elected
judges,
ignoring
precedent,
ignoring
the
historic
understanding
of
the
14th
Amendment,
making
the
law
and
interfering
with
the
rights
of
states,”
Klarman
said.
“You
don’t
hear
that
[about
Brown]
today,
but
those
were
exactly
the
kinds
of
arguments
that
were
made.”
Both
the
Lawrence
and
Brown
cases
presented
enormous
dilemmas
for
the
Supreme
Court.
Despite
Lawrence
passing
6-3
and
Brown
being
a
unanimous
ruling,
Klarman
said
it
was
likely
easier
for
the
court
to
strike
down
sodomy
laws
than
it
was
to
rule
against
segregation.
Public
opinion
was
significantly
opposed
to
criminalizing
private
sexual
acts
between
consenting
adults
at
the
time
Lawrence
was
decided,
whereas
Southern
whites
were
deeply
committed
to
maintaining
separation
of
the
races
in
education
in
1954.
In
theory,
public
opinion
should
not
influence
judicial
deliberations,
but
“in
the
long-term,
the
majority
opinion
determines
what
rights
the
minority
has,”
Klarman
said.
In
the
Brown
and
Lawrence
cases,
justices
could
not
reach
the
decisions
they
did
by
solely
relying
on
the
conventional
sources
of
constitutional
interpretation
such
as
the
law,
original
understanding
of
the
law,
precedent
and
custom,
Klarman
said.
“Until
public
opinion
had
become
accepting
of
school
desegregation,
the
justices
would
not
have
been
tempted
to
...
