Last edited: January 04, 2005

Blackmun Laid Cornerstone for Liberating Gay Americans

Detroit News, March 15, 1999
615 W. Lafayette, Detroit, MI 48226
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By Deb Price

Harry A. Blackmun, the gentle retired Supreme Court justice who recently died, eloquently laid a cornerstone in 1986 for rulings that one day will liberate gay Americans from second-class citizenship.

Passionately dissenting from a 5-4 ruling upholding the constitutionality of sodomy laws, Blackmun argued that "depriving individuals of the right to choose for themselves how to conduct their intimate relationships poses a far greater threat to the values most deeply rooted in our nation’s history than tolerance of nonconformity ever could do."

In that case, Bowers v. Hardwick, Blackmun had wanted to knock down the barbaric Georgia law under which gay Atlanta bartender Michael Hardwick had been arrested for having oral sex in his own bedroom. That law (struck down last year by Georgia’s top court) prohibited all oral and anal sex, even inside marriage. However, a majority of justices were so blinded by prejudice that they could not see beyond Hardwick’s homosexuality to the fundamental freedoms that sodomy laws trample.

Blackmun, in contrast, wisely recognized sodomy laws as an unconstitutional invasion of privacy. He saw those of us who are gay as real human beings with just as much right as anyone else "to be let alone."

The Supreme Court’s Bowers v. Hardwick ruling dealt gay Americans our greatest legal setback. Though it could not undo that damage, Blackmun’s ringing dissent delivered a lasting gift: Stirring words that may one day be used not only to help set aside Bowers v. Hardwick but also to build toward full legal equality for gay Americans.

Dissents from wrong-headed rulings can help guide the court when it wants to break away from past prejudice. For example, the notorious "separate but equal" Plessy v. Ferguson ruling upheld racial segregation in 1896. But the dissent declared that the Constitution "neither knows nor tolerates classes among citizens." The court quoted that dissent 100 years later in Romer v. Evans to justify knocking down Colorado’s Amendment Two, which made it harder for gay citizens than others to gain legal protections.

Kevin Cathcart of the gay Lambda Legal Defense and Education Fund hails Blackmun’s dissent as "really understanding sexuality and its role in life" in contrast to "an extremely ugly and nasty" ruling.

Justice Byron White’s majority opinion ridiculed as "facetious" the contention that Hardwick’s privacy claim was grounded in our tradition of liberty. In addition, Chief Justice Warren Burger approvingly quoted an 18th- century description of sodomy as being "an offense of ‘deeper malignity’ than rape." To protect gay sex, he railed, "would be to cast aside millennia of moral teaching."

Justice Blackmun, who died March 4 at age 90, enlisted late in the gay civil rights movement. He was 77 and well into his 24-year tenure when he sided with Hardwick.

President Richard Nixon, who nominated Blackmun in 1970, had billed him as a "strict constructionist" who recognized only those few rights detailed in the Constitution.

But by the time Blackmun wrote his landmark 1973 Roe v. Wade decision recognizing abortion rights, he had grown. He had begun to see our Constitution as a living document whose broad guarantees must be read expansively to meet society’s needs.

Yet he didn’t object when the court upheld Virginia’s sodomy law in 1976. And he signed on to a 1978 court document in which Justice William Rehnquist compared homosexuality to a contagion like measles.

"Blackmun became sort of an inadvertent champion of gay civil rights," contends Arthur Leonard, author of Sexuality and the Law. Leonard argues the dissent was part of Blackmun’s struggle to preserve privacy and abortion rights.

Blackmun clerk Chai Feldblum says Blackmun slowly developed "a real commitment to individual liberty." After his Hardwick dissent, Blackmun learned that Feldblum was gay, and his support for gay Americans continued growing.

The Constitution lost a friend this month. So did everyone who believes in its enduring promises of freedom and equality for all.

Deb Price is a Detroit News staff writer whose column is published on M onday.

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