Last edited: February 14, 2005

The Dark Legacy of Justice White

How yesterday’s Supreme Court affects today’s gay Americans

Los Angeles Times Syndicate, April 24, 2002

By Deb Price

The long, misguided Supreme Court career of Justice Byron White, who died April 15, illustrates why we as a nation must be careful about who gets confirmed to the highest court of the land.

Many years after the presidency during which they were appointed has faded into history, the life-tenured guardians of our Constitution’s grand promises continue handing down decisions that deeply touch all our lives.

The best justices approach each case with an open mind, an open heart, and a burning desire to be fair and to continually breathe new life into the Constitution’s ageless guarantees of liberty and equality.

Unfortunately, White, the author of the court’s most notoriously anti-gay decision, was not that sort of jurist. Rather, he was—as Frank Kameny, a founding father of the gay civil rights movement, so aptly puts it—a "supreme injustice."

President John F. Kennedy nominated White to the court in 1962. White, who had been a football star and a Rhodes scholar before becoming a lawyer, was someone who zealously guarded his own privacy by the time he joined the bench.

White quickly established a pattern of voting against gay pleas. In 1962, understanding of sexual orientation was still primitive. But gradually, the fact that being gay is a natural human variation, much like left-handedness, became fairly common knowledge. Yet White remained locked in the past.

A gruff, elbows-out jurist, White prided himself on rudely intimidating attorneys. "‘Warm’ and ‘fuzzy’ are not the two words that immediately come to mind when you think Byron White," former White clerk Andrew Schultz notes in "Courting Justice: Gay Men and Lesbians v. the Supreme Court," a 50-year history of the court’s treatment of gay people that I co-authored with Joyce Murdoch (Basic Books).

In June 1986, in his 24th year on the court, White displayed all his aggressiveness in writing a 5-to-4 ruling that ridiculed as "facetious" the idea that gay couples have a right to privacy. That Bowers vs. Hardwick decision upheld the Georgia law under which a gay man had been arrested for having sex with a consenting adult in his own bedroom.

For two decades, the court had recognized various privacy rights for sexually active heterosexuals. But the White-led majority stubbornly refused to extend similar protection to those of us who’re gay.

The harm that gay Americans have suffered because of White’s Hardwick decision did not end when White retired in 1993, after 31 years on the court. And it did not end when he died. Sodomy laws, which would have been struck down if the court had ruled differently in Hardwick, still exist in the military and at least 13 states. (The validity of sodomy laws in two other states, Michigan and Massachusetts, is unclear.)

There’s not one gay civil rights battle—from the right to serve openly in the military, to protections for our families, to protections from job discrimination—that wouldn’t be easier today if the Supreme Court had respected the privacy of gay couples 16 years ago.

Looking back over White’s career, gay-rights attorney Evan Wolfson notes, "He played a leading role in preventing the court from fulfilling its mandate to protect the vulnerable and to hold the government to a high standard when it discriminates against any group of citizens."

Wolfson, who argued at the high court on behalf of gay Eagle Scout James Dale, adds that our nation needs justices "without a cramped view of the court’s role as champion of the excluded."

Chief Justice William Rehnquist will likely be the next court member to retire. If a justice were appointed this year and had a career as long as White’s, he or she would still be handing down rulings in 2033.

Part of Justice White’s legacy is the following reminder: If we want justices who respect the rights of all Americans, we must make sure that those are the only nominees who get confirmed.

Deb Price of The Detroit News writes the first nationally syndicated column on gay issues and is the co-author of "Courting Justice: Gay Men and Lesbians v. the Supreme Court."

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