News

New Supreme Court Session Opens
— October 18, 2002

As the United States Supreme Court opened its 2002-2003 term earlier this month, three cases on the docket sought to inject a federal constitutional claim into the same-sex "marriage" debate. The first, In re Estate of Gardiner, was an appeal from a Kansas Supreme Court which earlier this year refused to recogize a transsexual marriage between two people both born male. Of primary interest on appeal was the validity of a Wisconsin birth certificate indicating that J'Noel Gardiner had changed his sex from male to female before marrying Marshall Gardiner. After the Kansas court declined to recognize the amended Wisconsin birth certificate, the plaintiffs appealed to the Supreme Court, arguing that the Full Faith and Credit Guarantee in the United States Constitution required Kansas to recognize the Wisconsin birth certificate. On the first day of its term, the Supreme Court declined to hear the case, leaving intact the Kansas marriage recognition policy.

Also before the high court are two cases seeking to overturn state laws punishing sodomy. In the first, Lawrence and Garner v. Texas, the Lambda Legal Defense and Education Fund challenges a Texas law which prohibits sodomy between same-sex couples, but does not extend to opposite-sex couples. The second case involves a statutory rape case from Kansas in which a 17-year-old male was convicted of having sexual relations with a 15-year-old boy. Matthew Limon was sentenced to 17 years in prison, a sentence which would have been significantly reduced under a "Romeo and Juliet" law mitigating the penalty in cases involving underage sexual relations between males and females within four years of the same age.

Both petitions for Supreme Court review argue that the laws unfairly discriminates against same-sex couples, while also seeking to overturn the Supreme Court's 1986 decision in Bowers v. Hardwick, a case in which the Court held that the U.S. Constitution does not guarantee a right to engage in sodomy. If reversed, either case could "produce" a federal constitutional right which would impact a variety of other state laws, including marriage laws. Both cases involve appeals from state appellate courts which the respective state supreme courts refused to review. While the Supreme Court has not yet decided whether to review the cases, court observers suggest that the high court is unlikely to review either of these cases.

Sources: Dawn Bormann, "Supreme Court Denies Transsexual's Claim to Late Husband's Estate," The Kansas City Star, Oct. 8, 2002; Ann Rostow, "ACLU Appeals Teen Sex Case to High Court," Gay.com, Oct. 10, 2002; "Making Strides Toward Decriminalizing Lesbian and Gay Sex," Lambda Legal Defense and Education Fund, Oct. 16, 2002, available at http://www.lambdalegal.org/cgi-bin/iowa/documents/record?record=1153.