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New Supreme Court term will test conservative tide Cases on gay rights, racial voting districts, sex equality to be key

THE BALTIMORE SUN

WASHINGTON -- The Supreme Court opens a new term today facing new tests of the rightward turn that it took early last summer in a spate of major rulings favoring conservative causes.

Although its workload is thin in numbers, the court will move swiftly into the most explosive issue likely to come up during the next nine months: an emotion-laden battle over political equality for homosexuals.

The first gay rights case to reach the court in nine years will test a 1992 amendment to Colorado's Constitution that would erase all state and local laws protecting gays, lesbians and bisexuals from discrimination, and bar any such laws in the future.

Among other heated legal feuds the justices will be taking on is a major test of how race may be used in redistricting to ensure that black candidates get elected. And the court may also step into the biggest sex equality conflict in years, growing out of attempts to admit women to the Virginia Military Institute and The Citadel.

Because the court moved so determinedly toward the right in many of the biggest decisions last term, analysts of the justices' work have waged a summer-long debate over whether the more moderate justices in the court's center bloc -- led by Justice Sandra Day O'Connor -- are losing control, or are keeping command by becoming more conservative themselves. The new term might not settle such a debate, but it will provide several new occasions to show how strong a conservative tide may be running.

Marquee case

Probably the most closely watched will be the gay rights case from Colorado. "That is the marquee case," says Washington lawyer John G. Roberts, a frequent advocate before the court.

The Colorado ban on gay rights laws is symbolic of nearly five dozen pro- and anti- initiatives on homosexuality that have been fought over on ballots around the nation in the past two decades. The case before the court is a sign of the court's readiness to face some of the heaviest controversies confronting the nation.

Vicki C. Jackson, a Georgetown University law professor, says the case has "the potential for dramatic development of the law," since it raises the basic constitutional question of whether homosexuals and any other social or political group have a right to join equally in the political process, to try to influence government action.

The case is not likely to settle the deep controversy over whether the Constitution itself gives homosexuals -- like racial minorities -- a right to be treated equally in jobs, housing or other policy areas. Instead, it focuses on whether the kind of protective laws homosexuals want to see enacted can be put out of reach by taking the power to enact such measures away from state and local government.

Anti-gay groups pushing initiatives like the one in Colorado have insisted that they want only to withhold "special rights" from homosexuals, while gay rights groups have argued that such measures simply deny "equal rights" to people of a disapproved sexual identity.

Among the constitutional experts squaring off in the Colorado dispute, adding their names to friend-of-court briefs in the case, are Robert H. Bork, a former federal judge and one-time Supreme Court nominee who is one of the nation's best-known conservative legal theorists, and Laurence H. Tribe, a Harvard law professor and an equally renowned liberal legal theorist.

Both of them figured in the last case the Supreme Court decided on gay rights.

In 1986, when the court decided that the Constitution provides no right of privacy for sexual conduct between homosexuals, it ++ relied partly upon a 1984 federal court ruling that Mr. Bork had written as a federal appeals judge.

Mr. Tribe argued the gay rights case in 1986, and almost won it, failing in the end by a 5-4 vote.

There have been wholesale changes in the membership of the court since the decision nine years ago: only Justice O'Connor and Chief Justice William H. Rehnquist remain from that majority, and only Justice John Paul Stevens remains from the dissenting bloc. Thus, six justices of the court will be casting votes for the first time on a major gay rights issue.

The majority opinion in the 1986 case included a heavy rhetorical condemnation of homosexuality, and sent what gay rights advocates believe was a strong anti-homosexual message across the political and social landscape.

Trying to counter the aftermath of that decision by sharpening their political organizing skills, gay rights advocates have been able to get laws protecting homosexuals from discrimination enacted in nine states and 130 cities.

But the gay rights successes also have produced a counter-movement in politics, leading to a continuing series of ballot initiatives or referendums against gay rights. Colorado's 1992 constitutional amendment was one result of that.

FTC This year, Maine will vote on the latest version of these initiatives: a measure that lists groups that are protected from discrimination but leaves out homosexuals.

As important as the outcome of the Colorado case will be the tone the court uses in its opinions.

That may have some bearing on the prospects for the next gay rights issue likely to reach the court in coming months: a challenge to President Clinton's "don't ask, don't tell" policy, which allows homosexuals to remain in the military as long as they do nothing or say nothing about their sexual identity.

Lighter load

As the court opens its new term, it has perhaps the smallest docket for decisions in more than 40 years -- continuing a trend of the past several terms toward a much lighter workload. That has been a long-term objective of Chief Justice Rehnquist.

As of now, there is no sign that the court's membership will change at any time during the new term, or after it recesses next summer. The chief justice, who had back surgery last week, will miss the opening days of the term. But he has given no indication that he is seriously pondering retirement -- at least until after next year's presidential election.

When the court left town for the summer, it had completed a term in which racial issues had figured prominently, and with results deeply upsetting to advocates of minority rights. James E. Ferguson II, general counsel of the American Civil Liberties Union, recalled last week: "A lot of us wanted to go back to bed and go back to sleep when we heard about those decisions."

The court took away a significant part of the federal government's power to use "affirmative action" programs, and limited federal judges' powers to fashion new ways to end racial segregation in schools.

It also dealt a serious setback -- the second in two years -- to the creation of black-dominated election districts designed to assure that minority candidates can get elected. This term, the court could produce a third setback for race-based redistricting in new test cases from North Carolina and Texas.

In a Georgia case at the end of last term, the court struck down a black-controlled district, finding that it was created mainly for racial reasons -- an unconstitutional "racial gerrymander."

Early in the new term, the justices could also opt to take on a major new test of the equality of the sexes by agreeing to review the attempts to allow women past the for-males-only barricades that surround the prestigious military schools in Virginia and South Carolina: VMI and The Citadel.

Part of the symbolism of those cases is that they have reached a court that includes a woman who, years before becoming a justice, was the nation's dominant women's rights lawyer and a passionate and frequently successful adversary of sex bias: Ruth Bader Ginsburg.

In her two years on the court, Justice Ginsburg has dropped hints that she is eager to draw the court back into a fundamental reexamination of sex bias and the Constitution. As of now, discrimination based on gender is judged by a more lenient standard than bias based on race.

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