Gays Look Back on a Bumpy Year--and Ahead to a Bumpy ’94 : Favorable court rulings made up for unfavorable policy decisions. But an ACLU lawyer says the movement is only nearing the halfway point.

Last year began with much hoopla about the waxing political strength of gay men and lesbians. Instead it turned out to be a time of painful political defeat on Capitol Hill--and of a surprising string of court victories hailed by many as a watershed in gay rights law.

Across the country, state and federal judges ruled in favor of gays in a series of decisions involving marriage, the military, anti-gay rights initiatives and custody cases. Although by no means the final word in most of the cases, the rulings offered the gay movement its most tangible advances in 1993.

“From the point of view of the gay and lesbian community, the various court decisions are a remarkable and miraculous vindication of the positions we have held for many years,” said J Craig Fong of the Lambda Legal Defense and Education Fund, founded 20 years ago to litigate gay rights cases. “These rulings provide the rationale for making gay and lesbian simply another adjective to describe a person and not a basis for discriminating.”

While Congress and the Pentagon were blocking repeal of the military’s ban on gays, federal judges were pronouncing the policy unconstitutional and irrational in opinions extraordinary for their sharply worded rejection of anti-gay discrimination. In five cases last year, courts ordered the military to reinstate gay service members or halted their discharge.

In Hawaii, the state Supreme Court cracked open the door to gay marriage when it revived a lawsuit challenging the state prohibition of same-sex marriages. A state judge in Colorado struck down an initiative forbidding the adoption of gay-rights laws. Pending trial, a federal judge in Ohio blocked enforcement of a similar measure approved by Cincinnati voters in November. High courts in both Vermont and Massachusetts approved adoptions by gays.

“I think this year was a turning point for gay law,” said William B. Rubenstein, a gay-rights attorney for the American Civil Liberties Union and editor of a recent book on gay law. “Increasingly the courts are becoming a haven for constitutional protections from prejudicial public policy-making.”

Legal experts describe the judicial gains as not only the product of years of groundwork by gay-rights attorneys but also the inevitable seepage of evolving public opinion into the courtroom. Even the bruising political fight over the military policy worked its way into recent court decisions to gays’ advantage, advocates say.

“Although we didn’t win in Congress, we certainly shifted the debate that was going on,” said ACLU attorney Jon Davidson. “The issue became reframed as a serious issue about equality. . . . What happened in the political arena really redefined the terms of the debate legally.”

The volume of gay rights cases also is growing, both because more gays are open about their sexual orientation and are willing to press such claims and a greater number of major law firms are willing to handle their cases. And cases are being taken more seriously by courts than in the past, when lawsuits were often tossed out by judges before reaching trial.

Yet gay-rights attorneys are hardly trumpeting victory.

“I think all of this comes against a backdrop of years and years of tough going, so we’re clawing our way to the point of midway,” said Rubenstein. “I think the road ahead will be bumpy. There will certainly be victory in 1994, but defeats as well.”

In fact, there were defeats in 1993. A Virginia judge declared a woman an unfit mother because she was a lesbian. And a federal judge ruled that the Georgia attorney general’s office could refuse employment to a lesbian attorney who took part in a wedding ceremony with her partner.

Looming above everything is the question of the U.S. Supreme Court, which has only taken up one major gay rights case, Bowers vs. Hardwick in 1986. The court then upheld Georgia’s criminal sodomy law, concluding that the constitutional right to privacy did not protect gay sexual conduct. The Supreme Court has never directly ruled on equal protection claims made by gays.

“We’re going to get a Supreme Court ruling one of these days, and I don’t think the trend of decisions in the lower (court) cases tells you very much” about what it will be, said Stanford University law professor William Cohen.

The Bowers decision and the relatively conservative nature of the current court make gay-rights proponents nervous about Supreme Court action.

“I hope we can avoid taking cases to the Supreme Court until it gets reconfigured some more,” said Janet E. Halley, a lesbian legal scholar at Stanford. “I don’t know what would happen. But I don’t want to find out.”

Even if gays do lose another major case before the Supreme Court, advocates say the state courts will provide other opportunities. Despite the Bowers ruling, for instance, there have been decisions striking down sodomy laws on the grounds that they violate state constitutions.

The cases that may well reach the Supreme Court first are the military ones, where gays are perhaps on the shakiest ground because of the historic deference the court has granted the military in policy and rule making.

“The military cases have been great, but I don’t think they’re going to hold up,” warned Matt Coles, an attorney with the ACLU of Northern California.

His pessimism stems partly from the reasons underlying last year’s decisions favoring gays: that the government failed to prove a “rational basis” for its discrimination against gay service members. Coles believes the Supreme Court chipped away at that line of argument last year in a case involving commitment of the mentally ill, when the justices seemed to grant considerable leeway to government entities in meeting the “rational basis” standard.

Fong, on the other hand, sees encouraging signs in the lower courts’ reliance on the rationality test.

He notes that it gave the judges a vehicle for declaring discrimination against gays unconstitutional without having to find that homosexuals belong to what is known in legal jargon as a “suspect classification”--such as race or national origin--deserving of greater legal protection.

It would be nice if gays were granted that designation, he says, but the judges’ willingness to rule in favor of gays without taking that step opens other legal avenues.

Indeed, last year’s decisions followed various legal paths. The Hawaii court concluded that the state ban on same-sex marriage amounted to gender discrimination. The Colorado decision threw out the anti-gay rights initiative on the grounds that the measure interfered with gays’ right to participate in the political process.

Of the 1993 rulings, gay-rights attorneys seem most confident that the Colorado decision will be upheld. Not only have courts overturned similar measures in recent years, but advocates contend the initiatives blatantly target gays.

For their part, gay-rights opponents insist they will ultimately prevail.

“I don’t look at (the decisions) as a real setback at all,” said Robert Skolrood, executive director of the National Legal Foundation, a conservative public interest group that helped draft the language of the anti-gay rights initiatives in Colorado and Cincinnati. “I think they’re treading on really thin ground.”

Skolrood argues that the Colorado ruling “created out of whole cloth a new right that federal law or U.S. Supreme Court decisions haven’t given anyone.”

Heartened by the Colorado court’s refusal to declare gays a protected class, Skolrood also dismissed any notion that the decisions would slow attempts to put initiatives before voters in other states.