Last edited: February 14, 2005

New Justices Will Strongly Affect Gay Americans

USA Today, June 20, 2001
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By Joyce Murdoch and Deb Price

The late U.S. Supreme Court Justice Lewis F. Powell Jr. was a genteel Southerner who found the mere mention of homosexuality so distasteful that he apologized to clerks who had to handle gay cases. In 1986, Powell, then 78, remarked to his fellow justices and a law clerk that he in fact had never even known a homosexual. Sadly, no one corrected him — including the law clerk, a gay man.

Powell, who went on that year to cast the swing vote in a devastating anti-gay ruling upholding Georgia’s anti-sodomy law, had been served by a long line of closeted gay clerks, both male and female. Some of them were his favorites; all of them were his trusted assistants.

In other ways, Powell was an empathetic jurist. His support for abortion rights had its roots in his awareness that an office boy in his Richmond law firm had nearly gone to prison after the young man’s girlfriend died when he helped her with an illegal abortion. Powell knew the human price of outlawing abortion. But he conveniently forgot that homosexuals were serving prison sentences of 20 years or more for oral or anal sex.

Powell was far from alone in his failure to come to grips with the harm being inflicted upon gay people. The U.S. Supreme Court’s willful blindness and active hostility toward even hearing the pleas of gay men and lesbians have made it a drag on our nation’s progress toward full legal equality for gay Americans.

When cases before them have involved homosexuality, most justices have preferred to duck rather than educate themselves about a topic that made them uncomfortable.

Not until in 1996, in the first major Supreme Court breakthrough for gay Americans since a 1958 decision in which the court refused to equate homosexuality with obscenity, did the court wrap gay Americans in the protective embrace of the Constitution’s equal-protection clause. And that ruling’s implicit promise of full equality remains unfulfilled.

President Bush, who considers gay-rights foes Antonin Scalia and Clarence Thomas model justices, will likely get to appoint justices who will affect the pace of progress for decades to come.

Gay Americans now have four reliable allies on the nine-member court: John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer. Although Stevens is the oldest justice, Chief Justice William Rehnquist is rumored to be considering hanging up his robes. Rehnquist once outrageously compared banning gay campus groups to quarantining people with measles. His successor could give the court its first reliable gay-supportive majority.

That’s why it’s essential that senators be pushed to oppose confirmation of any court nominee hostile to basic gay civil-rights protections.

But even conservative justices show signs of being influenced by the rapidly accelerating integration of openly gay people into all facets of society.

For instance, Rehnquist stressed last summer that while a majority of justices thought the Boy Scouts of America had a right to discriminate, the court was not endorsing that group’s homophobia.

Today’s justices are gradually learning more about what it means to be gay: Ginsburg gave a crystal vase to a lesbian former clerk and her partner to celebrate their holy union ceremony. Souter hired one clerk who’d written a law-review article advocating same-sex marriage, and he was quietly supportive when another clerk came out to him.

All that is not to say that earlier justices had no gay influences or that knowing someone gay automatically makes a justice receptive to gay rights. The court, like life, is far more complicated than that.

The court hates to get too far out of step with middle America. Stevens pointed out in his dissent in the Boy Scouts case that the court is gradually changing because justices do read about such dramatic breakthroughs as the Big Three auto companies extending benefits to gay workers’ partners. Stevens noted how Justice Harry Blackmun had evolved from comparing homosexuality to a contagion to writing an eloquent dissent in favor of recognizing gay Americans’ privacy rights.

In the eight years between taking those conflicting stands, Blackmun, who viewed his clerks as surrogate sons and daughters, had learned that a former clerk was gay, we found. Likewise, when Justice Thurgood Marshall explained his support for gay civil rights, he spoke of knowing Bayard Rustin, the gay lieutenant of Martin Luther King Jr.

The Supreme Court has a long history of reflecting society’s prejudices — toward racial minorities and women, for example — and then getting beyond those biases as attitudes outside its marble palace change.

Constitutional law is not a mathematical equation. Questions of individual rights rarely yield one simple, indisputable answer, and the Constitution is a grand outline, not a simple rule book. That’s why gay Americans and our supporters can have a dramatic effect on future rulings in gay cases involving, say, child custody, military service and job discrimination.

Simply living one’s life openly — being part of the revolutionary changes sweeping America — is rocking the court.

  • Joyce Murdoch, the managing editor for politics at National Journal, and Deb Price, who writes a nationally syndicated column on gay issues for The Detroit News, are the co-authors of Courting Justice: Gay Men and Lesbians v. the Supreme Court.

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