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Supreme Court again finds itself in the middle of a cultural controversy

WASHINGTON—The year is just days old, but already the Supreme Court, increasingly a focal point in the turbulent debate over social values, finds itself facing a cultural controversy—again.

On Friday, when the justices returned from break, they began considering whether to hear an appeal asking that a Florida law banning gays from adopting children be declared unconstitutional.

It's a contentious case about a divisive issue that, for many Americans, speaks to the nature of morality, liberty and equality. And it's only the beginning for the year ahead at the high court.

If the 2004 presidential election defined the cultural skirmishes that lurked beneath just about every political conversation, the next year at the Supreme Court will make the contours and boundaries of those divisions clearer.

The debate over gay adoption comes just weeks before the justices decide whether to hear an important assisted-suicide case out of Oregon, and a few months before arguments are held in two cases involving Ten Commandments monuments on public grounds. Lower-court cases involving partial-birth abortion could make their way onto the high court's radar later this year, and as Massachusetts continues to issue marriage licenses to gay couples, that issue moves closer to federal courts.

Looming even larger is the retirement of Chief Justice William H. Rehnquist, who's sick with thyroid cancer and has been absent from court proceedings since late October. If he retires, the predicted battle to name his successor will likely encompass all of the nasty disputes over social values.

"This will be a huge year for the court," said Jay Sekulow, chief counsel for the American Center for Law and Justice, a conservative advocacy group that's litigating several Ten Commandments cases around the country. "Ultimately, every legal issue is decided by the court, and since so many of these cultural issues have legal components, they wind up in the middle."

Court historians note that the intersection of court business and cultural clashes is nothing new; think of the civil rights movement of the 1950s or 1960s, or the series of women's rights cases of the 1970s.

But the current court has proved less willing—and perhaps as a result, less able—to boldly lead public opinion, and it has often resorted to the kind of legal hair-splitting that leaves both sides of a cultural divide feeling dissatisfied.

So while the justices will undoubtedly touch on many highly charged social issues this year, experts say, no one should be looking to them for argument-ending resolution.

"Whether you're on the far right or the far left, you're unlikely to get much political yardage out of court decisions these days," said David Garrow, constitutional expert and author of a book about Roe v. Wade. "This is not a court that generally turns up the volume, and that's probably as it should be."

Garrow said only two justices, Anthony Kennedy and Antonin Scalia, enjoy "uttering grand declarations" from the bench. Kennedy, a moderate swing voter, sometimes succeeds in getting four other votes to support his side, as he was in the sweeping 2003 ruling that struck down gay sodomy laws. Scalia, one of the court's most conservative members and a well-known firebrand, is generally consigned to fume in isolation.

Garrow said the court has greeted the explosion of religious cases, for example, with increasingly fine parsings of the law, so much so that it's hard to make heads or tails of what statement the justices want to make.

Take the Ten Commandments cases scheduled to be argued in March. The issue has been swirling in lower courts for some time and gained momentum last year when Alabama Chief Justice Roy Moore was ousted after refusing to remove a monument at his courthouse.

But the high court has taken two cases that suggest it'll issue a fact-specific ruling on the matter that does little to achieve broad resolution. They involve monuments that are enshrined in collections of secular historical documents, so it will be easy for the court to say they have no religious meaning and don't violate the Constitution.

For religious conservatives, such a ruling would run counter to their belief that explicit religious endorsements are OK; it'll also defy the wishes of secularists who want the church-state boundaries fortified.

"I think they'll split the baby on this one," Garrow said. "But that won't end the argument."

Similarly last year, when the court confronted a case that asked whether public schoolchildren could be led in saying the words "under God" in the Pledge of Allegiance, the justices ducked the main issue and offered a procedural ruling.

Sekulow said what's behind the court's role reversal is its shift from exhibiting leadership to lagging behind American sentiment.

"With civil rights, they were out front, but on issues like abortion and gay rights, they're out of step," Sekulow said. He said rulings inconsistent with public opinion would inspire important—and often successful—backlash.

Robert Sedler, a constitutional expert at Wayne State University in Detroit, said the court is probably in the right place on most social issues—beholden to the law, rather than one side or another.

"I don't think they fear backlash or even weigh likely public opposition," Sedler said. "They make a judgment based on the law, and they stick by it." He said even when they disagree, Americans accept their word as final.

Bush v. Gore, he said, was proof. "Half the country supported Gore, and many thought the ruling was wrong. But it stood."


(c) 2005, Knight Ridder/Tribune Information Services.

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