Supreme Court rejoins nation's culture battles

Abortion and gay rights cases could echo in fall election

April 23, 2000|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- Saving some of the hardest cases for last, the Supreme Court winds up its hearings for the term this week by returning to the nation's culture wars over abortion and gay rights.

In two cases with far-reaching social and political implications, the justices on Tuesday will take up their first major abortion case in eight years, and on Wednesday they will review a New Jersey case involving the Boy Scouts' ban on homosexual members and leaders.

The abortion case, centering on a Nebraska law that both sides refer to as a "partial-birth" abortion ban, is shaping up as a test of whether the court will cut back on the right to abortion declared by the court in 1973 and kept largely intact in a 1992 decision.

Both sides, in their publicity buildup toward this week's hearing, are suggesting that Roe vs. Wade itself may be at stake -- even though the court indicated when it agreed to hear the Nebraska case that it did not want to listen to arguments about overruling Roe.

The militant anti-abortion group Operation Rescue says, "It is our hope that the court will use this opportunity to revisit Roe vs. Wade," in the words of its Western director, Troy Newman.

And a leading abortion rights group, the Center for Reproductive Law and Policy, says that "the Supreme Court really does have Roe vs. Wade on its plate," in the words of its litigation director, Simon Heller.

The court will be studying a type of law that has become the chosen means by which abortion-rights opponents, in a coordinated, cross-country campaign, seek to gauge the justices' willingness to back away from Roe, if not to scuttle it altogether. Thirty states (not including Maryland) have such laws, and Congress is moving toward its third attempt to enact the same kind of legislation; its two prior attempts were vetoed by President Clinton.

In the Scouts case, the first significant gay rights dispute the justices have reviewed in four years, the court will consider the claim of one of the nation's mainstream institutions -- an organization that exists in nearly every city and town -- that it has a constitutional right to exclude homosexuals.

Both sides see that case as a defining event in the wide-ranging campaign by gay and lesbian rights advocates to gain acceptance throughout American culture -- a campaign that has featured prominently efforts to gain the right to marry and the right to serve openly in the military.

The Scouts and their supporters in the case argue that the New Jersey dispute, involving an adult leader ousted after he was identified publicly as gay, is not a gay rights case at all. Rather, they argue, it is a case about the right of a private organization to define its own values and message -- in other words, a right of free speech, free thought, and free private relationships.

On the other side, ousted Assistant Scoutmaster James Dale and his supporters insist that the case goes to the core of homosexual bias. They see it as a test of the power of more than 40 states (including Maryland) and many municipalities to use anti-discrimination laws to challenge the exclusion of homosexuals by private groups.

After this week's hearings, the justices begin their final decision-making rush in a term that has featured an unusually heavy agenda of difficult, deeply controversial cases, ranging from school prayer to Miranda warnings.

But few if any of the cases already heard are likely to go as far as the abortion and homosexuality disputes toward defining the court's image. And few others, if any, seem as likely to become visible political issues for this year's presidential and congressional election campaigns.

If the future of the court becomes a political question this summer and fall, as it may, the outcomes in the two cases coming up this week may shape the debate between the presumed candidates, Republican George W. Bush and Democrat Al Gore.

Even though none of the nine justices has given any sign of an intent to retire, political analysts speculate that the next president will select two or three new justices.

If, as expected, the court divides deeply when it decides the abortion and gay rights cases, that could raise the stakes in any argument about the choice of future justices.

In the court's last major abortion ruling, in 1992, the court split 5-4. Since then, two new justices have joined the court: Ruth Bader Ginsburg and Stephen G. Breyer. They replaced one justice in the majority in 1992 and one justice who was in dissent.

Both are expected, because of their moderate to liberal leanings, to be more or less sympathetic to women's abortion rights, but they have not been tested on that.

Moreover, the Nebraska case, at least as it reaches the court, does not appear to require an up-or-down vote on the survival of abortion rights in any form. After partly reaffirming Roe vs. Wade in its 1992 decision in the so-called "Casey case" from Pennsylvania, the court has shown no interest in reopening Roe.

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