Last edited: February 14, 2005

Lesbian Journalists: Supreme Court, News Media Ignore Gays’ Rights

Freedom Forum, July 30, 2001
1101 Wilson Blvd., Arlington, VA 22209
Fax: 703/284-3770

By Sarah L. Rasmusson, Special to

NEW YORK — When it comes to supporting the First Amendment rights of gays and lesbians, both the mainstream press and the U.S. Supreme Court don’t do them justice, say two prominent lesbian journalists.

"All the institutions that should be educating people about this major civil rights movement are letting down people.were derelict in their duty," said Deb Price, who writes the first nationally syndicated gay column for the Detroit News.

Price pointed to the newspaper industry in particular.

"The press wants rights guaranteed to it by the Constitution, but then often doesn’t think about the responsibilities that come with that right — such as the responsibility to represent all voices and all communities," Price said.

"I have had people tell me they have been threatened with losing their job for running (my) column in their paper," she said. "Despite all these buzzwords about diversity and wanting to be on the cutting edge, very often editors do not take this responsibility seriously."

The refusal of small, local papers to run her column, she said, made her want to investigate anti-gay bias in the history of Supreme Court decisions that relate to the press.

Out of that came "Courting Justice: Gay Men and Lesbians v. the Supreme Court", a new book that probes the rulings in the most influential cases in the gay-rights movement over the past 50 years, which Price wrote with Joyce Murdoch, managing editor for politics at the National Journal.

Both women, who have been life partners since 1985, were on hand July 26 at the First Amendment Center to give an overview of their research.

"A lot of the history of the Supreme Court and its battle with gay people has been a history of the Supreme Court refusing to respect the First Amendment rights of gay people," said Murdoch, who also co-wrote "And Say Hi to Joyce: America’s First Gay Column Comes Out", about Price’s column.

Since 1957 — when the first gay-related case was brought to the Supreme Court — gays and lesbians have forced the nation’s highest court to consider whether the Constitution’s promise of equal protection applies to them, said Murdoch. And she said that the first case, in fact, was a freedom-of-the-press case.

After the U.S. Postal Service in 1954 banned distribution of the nation’s first gay publication — ONE, which was produced in Los Angeles and daringly subtitled "The Homosexual Magazine" — using a law that banned the mailing of any "obscene, lewd, lascivious or filthy" publication, the top court, under liberal Chief Justice Earl Warren, upheld gays’ right to free speech.

"Had that case been lost," said Price, who credits the perseverance of ONE’s publishers for giving birth to the gay press, "it’s hard to even imagine how the gay-rights movement would have gotten off the ground in the United States."

Still, despite an initial victory, the Supreme Court has failed to consistently apply the same standard of fairness to gays as to other Americans, Price and Murdoch said.

"Just the right to say the words ‘I am gay,’ that these people were fighting for in the 1950s, of course is still a battle that is being waged every day in the military," Price said. "I know this battle well as a newspaper columnist, because I see the editors who do not want the perspective of a gay person to be speaking in their newspaper."

Although the nation’s court system has a responsibility to equally apply the laws of the Constitution to all citizens, Price said their research shows that has not always been the case.

Noting the many victims of the military’s "don’t ask, don’t tell" policy, Murdoch said, "These were people that believed in honesty and integrity. They believed that the Constitution protected their right to free speech — their right to say who they were, to speak honestly about themselves."

"One of the most interesting cases was a freedom of religion case," she said, detailing Shahar v. Bowers et al in 1998, in which lesbian Robin Joy Shahar said her employer fired her for celebrating her gay union with a Jewish ceremony.

"It was a really important freedom-of-religion case because not only was she being fired for being a lesbian but also for practicing her religion," Murdoch said. It wasn’t an easy win, though, she noted, referring to Shahar’s 7-year battle.

With more than 500 pages of investigative reporting, Courting Justice draws on interviews with justices’ friends, relatives and more than 100 former Supreme Court law clerks, as well as the justices’ private papers and official Supreme Court documents, to explain the evolution in attitudes by the nation’s nine ultimate arbiters over the past five decades.

The book relates that Chief Justice Earl Warren once signed an opinion in which a six-member majority of the court referred to gays as people "afflicted with homosexuality"; that his successor, Warren E. Burger, once wrote of gays as "sex deviates"; and that the current chief justice, William H. Rehnquist, likened a university’s refusal to recognize a gay-student group to measures necessary to prevent the spread of measles.

"The consistent message from the court is that it really hasn’t wanted to protect the rights of gay people in the same way as it’s wanted to protect the rights of other people," Murdoch said.

Historically, Murdoch claimed, what justices know about gay people — and if they know anything at all — has a lot to do with the decisions they hand down.

Even if some justices, like Truman appointee Tom Clark, had relatives who were gay, Murdoch said, "at that time, gay people were thought of by most justices as unconvicted criminals . that we weren’t a minority group or any kind of legitimate group at all, that we were probably mentally ill or that we should probably be arrested if we hadn’t been already."

Murdoch called this anti-gay bias the court’s "cooties reaction" to gays. And, she said that the appointment of a gay justice to the nation’s highest court would go a long way to balance some decisions in gays’ favor.

Despite losses like 1986’s Bowers v. Hardwick, which upheld Georgia’s law against homosexual sodomy and essentially declared that gays had no right to privacy, and which "was an incredibly vitriolic, an astoundingly mean-spirited ruling," Price said, both she and Murdoch remain hopeful for an unbiased court.

"As bad as the court has been on gay issues over all," Murdoch said, "it has changed over time as society has changed."

Price agreed, adding, "We don’t look at the disappointment of last year’s Boy Scout’s decision [Boy Scouts of America v. Dale], we see it in the larger history — going back to the 1950s when the courts basically considered gays to be ‘afflicted with homosexuality.’ Are there too many 5-4 decisions? Do we get losses? Yes, but we look at [it] in terms of where we’re are heading."

"Even though [President] Bush can be expected to appoint conservatives [to Supreme Court openings]," Murdoch added, "time is on our side. The Supreme Court is only one piece of this dramatic change."

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