Lesbian Journalists: Supreme Court, News Media Ignore Gays Rights
July 30, 2001
1101 Wilson Blvd., Arlington, VA 22209
By Sarah L. Rasmusson, Special to freedomforum.org
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 dont 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 doesnt think about the responsibilities that come with that right
such as the responsibility to represent all voices and all communities,"
"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
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: Americas First Gay Column Comes Out", about
Since 1957 when the first gay-related case was brought to the Supreme
Court gays and lesbians have forced the nations highest court to
consider whether the Constitutions promise of equal protection applies to
them, said Murdoch. And she said that the first case, in fact, was a
After the U.S. Postal Service in 1954 banned distribution of the nations
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 ONEs publishers for giving birth to the gay press, "its
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 nations 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 militarys "dont ask, dont
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
"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 wasnt an easy win, though, she noted,
referring to Shahars 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
nations 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 universitys refusal to
recognize a gay-student group to measures necessary to prevent the spread of
"The consistent message from the court is that it really hasnt
wanted to protect the rights of gay people in the same way as its 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
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 werent 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 hadnt been already."
Murdoch called this anti-gay bias the courts "cooties
reaction" to gays. And, she said that the appointment of a gay justice to
the nations highest court would go a long way to balance some decisions in
Despite losses like 1986s Bowers v. Hardwick, which upheld Georgias
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 dont look at the disappointment of last
years Boy Scouts 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 were
"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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