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
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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