Last edited: December 05, 2004

Books: Homosexuality and the High Court

Washington Post, June 10, 2001
1150 15th Street NW, Washington, DC 20071

By Hastings Wyman

Courting Justice: Gay Men and Lesbians v. the Supreme Court; By Joyce Murdoch and Deb Price; Basic. 582 pp. $32.50

In "Courting Justice," journalists Joyce Murdoch and Deb Price have provided a fascinating behind-the-scenes look at the U.S. Supreme Court and a thorough survey of its treatment of gay Americans. The book is not only accessible to a general audience but even lively.

For example, the authors tell the story of Frank Kameny, an astronomer from the District with a Harvard PhD, who was informed in 1957 that he couldn’t draw maps for the Army Map Service because he was gay. In his self-drafted Supreme Court brief, Kameny called the government’s anti-homosexual policies "a stench in the nostrils of decent people." We learn that at least one former justice, Frank Murphy, who served from 1940 to 1949, was probably gay. And we read that these very thorough journalists "found not one shred of evidence" to confirm rumors that Justice David Souter, who has never married, is gay.

The authors interviewed 103 former law clerks for Supreme Court justices — slots reserved for the brightest and most promising law graduates. Among this august group, they found 18 gay men and four lesbians — a significantly higher proportion than in the population at large. (They note that though Justice Lewis Powell once said he had never known a homosexual, four of his clerks were gay.)

Americans are accustomed to thinking of the Supreme Court as the prime mover in civil rights and other momentous changes. But "Courting Justice" points out that for years the court seemed squeamish about entering the thicket of homosexuality. In the 1960s and ‘70s, it routinely refused to review lower-court decisions that had gone against gay people. Later, as the gay liberation movement began to win judicial victories, the Supreme Court often denied certiorari to the anti-gay side.

Three exceptions to this nonintervention policy stand out among the cases discussed in the book. ONE Inc. v. Oleson, in 1958, upheld the right of homosexual publications to use the U.S. Postal Service, paving the way for a major expansion of the gay press. In 1986 gay rights advocates suffered a major defeat. In Bowers v. Hardwick, the court ruled 5 to 4 that the Georgia law criminalizing sodomy was constitutional. Such laws have been enforced more often than is generally believed. As recently as 1972, 85 people were in Florida prisons for "crimes against nature." Moreover, anti-sodomy laws are frequently used against gay people in such matters as adoption and child custody.

With Romer v. Evans, in 1996, the court handed the gay movement a major victory. Its decision that a state’s voters do not have the right to prevent the state legislature and local jurisdictions from enacting protections for gay people halted a major assault by the religious right against numerous local gay rights laws across the country.

In their disappointment at the court’s limited leadership in this area, the authors fail to appreciate that many of the movement’s goals are being met — albeit gradually — through other avenues. The Supreme Court may have ruled that Georgia’s anti-sodomy statute didn’t violate the U.S. Constitution, but the Georgia Supreme Court later declared the law in violation of the state’s own constitution. The high courts of Arkansas, Kentucky, Montana and Tennessee have made similar rulings. When the Supreme Court decided the postal case in 1958, homosexual acts were outlawed in every state; today, by virtue of state judicial or legislative action, the number of states banning sodomy is 16. According to the National Gay and Lesbian Task Force, more than 100 cities prohibit job bias against homosexuals. In addition, 12 state legislatures have enacted employment protections for gay people, Maryland being the most recent.

During the current legislative session, the Alabama House of Representatives added sexual orientation to its hate crimes law. And in Texas, four pro-gay measures are making their way through the legislature. On the federal level, while the court ruled, in 1967 in Boutilier v. INS, that the Immigration and Naturalization Service could bar gay immigrants, in 1990 Rep. Barney Frank (D-Mass.) pushed a bill through Congress to delete the ban. Similarly, President Clinton’s executive orders addressed many gay concerns about federal employment. While such progress is slower than a victory in the Supreme Court, when it happens the anti-gay forces cannot claim that the changes in the way homosexuals are treated have been imposed from on high.

Though promising to tell this story "as objectively as possible," Murdoch and Price, who are lesbians, have a great deal of trouble doing so. They show little appreciation for the conservative view that Supreme Court decisions are ultimately concerned only with the U.S. Constitution, its language and meaning. Rather, they view the court as a supra-legislature, concerned with policy outcomes, not legal precedent.

Murdoch and Price may also exaggerate the role that personal bias plays in the justices’ decisions. However, they cite Chief Justice Charles Evan Hughes telling Justice William O. Douglas: "At the constitutional level where we work, 90 percent of any decision is emotion. The rational part of us supplies the reasons for supporting our predilections."

On balance, this book is an admirable reflection of the authors’ vast research. Future court scholars will keep "Courting Justice" on a short shelf of tomes that elucidate the court’s inner workings. And those interested in the changing role of gay people in American society will find it indispensable.

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