Last edited: January 02, 2005

Balance of Justice

Cultural advances, openly gay clerks, and speculation about the sexual orientation of one of their own have substantially changed the way the Supreme Court justices weigh civil rights

The Advocate, March 4, 2003

By Chris Bull

It was almost 17 years ago, but it could have been a century. During oral arguments before the Supreme Court in Bowers v. Hardwick, the Georgia sodomy case, Chief Justice Warren Burger blurted out, "Didnít they used to put people to death for this?" In the landmark 5Ė4 ruling that followed, the nationís highest court upheld the constitutionality of sodomy statutes that to this day are used to deny gay rights claims in courts and continue to spark protests and demands to eliminate the laws across the nation.

Now, as the court is preparing hear another high-stakes challenge to sodomy laws, even the most conservative justices are likely to show far more respect for the legal arguments put forth by those who believe such laws are unconstitutional. For in the years between Bowers and Lawrence v. Texas, which the court is scheduled to hear March 26 and decide by late June, the justices have spent an unprecedented amount of time with out gay men and lesbians and have even faced speculation about the sexual orientation of one of their own, David Souter.

"Souter had barely left the podium in the press room of the White House before Republican Party officials were raising Ďthe 50-year-old bachelor thing,í which was widely interpreted as a way of introducing speculation that Souter is homosexual," Margaret Carlson wrote in Time magazine in August 1990, shortly after Souterís nomination.

Justices seldom discuss their personal lives, and Souter never addressed the speculation. But some have speculated that justicesí private musings about Souterís sexual orientation have elevated the level of debate about gay rights and the law. "David Souter isnít gay, as far as anyone knows, but thereís enough speculation about it that his fellow justices have to be a little more careful about what they say, at least in his presence," says a veteran observer of the court who didnít want to be quoted by name. "Thereís enough vagueness about him as a bachelor in this regard to raise the level of debate. Even something thatís nothing more than rumor can change the equation. Why would conservatives want to risk alienating him and losing his vote forever?"

But Joyce Murdoch, coauthor of Courting Justice: Gay Men and Lesbians v. the Supreme Court, insists that impressions about Souterís personal life are far less critical than the presence of legions of openly gay law graduates who have descended upon the court over the past decade. Murdoch says she can think of four justices who have had at least one out gay clerk work with them.

"Now even the most conservative justices are getting clerk applicants who serve as the head of the Yale Law School gay student group," says Murdoch, who is also a managing editor of the National Journal. "A disproportionate number of the graduates of top law schools are gay, and it is changing the entire legal profession as well as the court."

Todayís court, which boasts a conservative majority, may be poised to deliver a surprising victory for gay and lesbian equality. Despite a Republican president who has said that Texasís sodomy law is "a symbolic gesture of traditional values" and a GOP-controlled Congress hostile to gay rights, there is growing public opposition to such laws. And court watchers say this opposition actually may be reflected by two of Ronald Reaganís appointees to the court, Sandra Day OíConnor, who voted with the majority in Bowers, and Anthony Kennedy, who joined the court in 1988. In addition to OíConnor, only two justices who heard Bowers remain on the courtóRehnquist, who voted with the majority in the case, and John Paul Stevens, a liberal who joined the dissent.

Lawrence will be argued based on competing constitutional interpretations of the right to privacy, equal protection, and statesí rights. But it also will play out behind the courtís cloak of tradition and formality, perhaps reflecting the many changes in society and in the justicesí relationships with gay men and lesbians, from family members to law clerks.

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