New Justices Will Strongly Affect Gay Americans
June 20, 2001
1000 Wilson Blvd., Arlington, VA 22229
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
Powell, who went on that year to cast the swing vote in a devastating
anti-gay ruling upholding Georgias 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 mans 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 Courts willful blindness
and active hostility toward even hearing the pleas of gay men and lesbians
have made it a drag on our nations progress toward full legal equality for
When cases before them have involved homosexuality, most justices have
preferred to duck rather than educate themselves about a topic that made them
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 Constitutions equal-protection clause. And that
rulings 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.
Thats why its essential that senators be pushed to oppose
confirmation of any court nominee hostile to basic gay civil-rights
But even conservative justices show signs of being influenced by the
rapidly accelerating integration of openly gay people into all facets of
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 groups homophobia.
Todays 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 whod 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
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 societys 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. Thats 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 ones 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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