The U.S. Supreme Court decision allowing states to ban gay adoption may surprise some, because the high court two years ago, in effect, legalized homosexuality.
But this decision shows that the law, for now, seems to have caught up with public opinion on gay-rights matters.
There is a consensus that homosexuals deserve the same basic rights as all Americans. But those individual rights may be tempered due to public concerns about the impact of homosexual conduct on society.
And despite gay-rights advocates' efforts to sell their agenda as the next step in the civil-rights movement, the courts and the country are not yet sold on their one gigantic premise:
That when it comes to questions about conflicting rights and government protections, homosexuality should merit the same status in the legal pecking order as does race.
The decision may foreshadow the court's inclination to let voters, either directly or through their elected officials, decide whether to expand the definition of what constitutes a basic right. And it evidences a commitment to give states great latitude in this area.
None of this can be comforting to the gay-rights movement, which has counted on the courts to provide the victories that recent elections show are not obtainable at the ballot box.
Although it is difficult to generalize because the Supreme Court did not issue a decision in the adoption case — it only refused to hear a lower court appeal — this ruling would seem to send an important signal about the future:
That in the biggest case dealing with gay rights coming down the pike, this Supreme Court may be unwilling to junk a federal law that allows states to decide not to recognize gay marriages sanctioned by other states.
If so, and the federal Defense of Marriage Act can withstand judicial scrutiny, it would greatly defuse the movement for an amendment to the U.S. Constitution to ban same-sex unions.
The adoption case stemmed from a 28-year-old Florida law that has been a target of homosexual-rights groups. They wanted to overturn Florida's statute that prevents gays from adopting children, although many serve as foster parents.
The court, by refusing to act, implicitly adopted the lower-court rationale that it was permissible to discriminate against homosexuals due to concern about the welfare of the children in same-sex households.
The Supreme Court was able to do so because sexual orientation is not a protected category in federal law or the Constitution, unlike race, sex, religion or disability. Gays are a protected class in some states, but not Florida, the only one to ban gay adoption.
The adoption ruling is in philosophical sync with a similar decision by the court last year, which followed the same principle in refusing to hear a challenge to Massachusetts' legalization of gay marriage.
There, too, the court decided that it was a political matter that should be left to individual states to decide, and that the issue did not rise to one that violates constitutionally guaranteed rights.
Gay-rights groups had hoped that the 2003 Supreme Court decision throwing out a Texas law making sodomy illegal and decriminalizing homosexuality would become their Brown v. Board of Education. That was the 1954 Supreme Court ruling that ordered school desegregation and opened an era of government-mandated progress for blacks in the United States across the board.
Although such progress for gays has been achieved in some states — Massachusetts, for instance, which legalized gay marriage last year — it has not yet led to congressional action or nationwide court rulings extending rights to gays.
In fact, in refusing to hear the Florida case, the court made clear it did not see the Texas decision as groundbreaking and requiring further steps favored by gay-rights groups.
Meanwhile, the political backlash against gay rights has been substantial. In 11 states this past year, voters explicitly banned homosexual marriage in their constitutions. Obviously, the ruling in the adoption case indicates that the odds are strongly against the Supreme Court invalidating such expressions of public will.
Of course, given the likelihood President Bush will appoint judges disinclined to make social policy from the bench, any forthcoming changes in the Supreme Court are likely to just continue the adoption case trend.
The concerns expressed by social conservatives and hopes of gay-rights leaders that the 2003 Texas ruling would open the door to wholesale changes in American life seem, at this point, to be unfounded.
