Balance of justice

Cultural advances, openly gay clerks, and speculation about the sexual orientation of one of their own have substantially changed the way the Supreme Court justices weigh civil rights

BY Chris Bull

February 17 2003 1:00 AM ET

It was almost 17
years ago, but it could have been a century. During oral
arguments before the Supreme Court in Bowers v.
Hardwick
, the Georgia sodomy case, Chief Justice
Warren Burger blurted out, “Didn’t they
used to put people to death for this?” In the
landmark 5–4 ruling that followed, the
nation’s highest court upheld the constitutionality
of sodomy statutes that to this day are used to deny
gay rights claims in courts and continue to spark
protests and demands to eliminate the laws across the
nation.

Now, as the court
is preparing hear another high-stakes challenge to
sodomy laws, even the most conservative justices are likely
to show far more respect for the legal arguments put
forth by those who believe such laws are
unconstitutional. For in the years between Bowers and
Lawrence v. Texas, which the court is scheduled
to hear March 26 and decide by late June, the justices
have spent an unprecedented amount of time with out
gay men and lesbians and have even faced speculation
about the sexual orientation of one of their own, David
Souter.

“I was
sitting next to Michael Hardwick in the courtroom when
Burger boomed that line about the death
penalty,” recalls Evan Wolfson, who wrote the
case brief for Lambda Legal Defense and Education Fund at
the time and was part of the appellant team led by
well-known civil rights lawyer Lawrence Tribe.
“I knew we were doomed right then and there. The
court felt like a very hostile place.”

Wolfson would
know. In 2000 he unsuccessfully argued before the Supreme
Court, in Boy Scouts of America v. Dale, that the BSA
should not be exempt from state bans on antigay
discrimination. “We didn’t win that
case, so of course I didn’t agree with the
court’s logic. But it didn’t feel
hostile,” Wolfson says. “These days, even when
we don’t get our way, we are much more likely
to get a fair hearing. [The justices] have come a
long, long way, and I think that bodes well for
Lawrence.”

In some ways the
Supreme Court’s more respectful tone dates to 1990,
when the first President Bush nominated Souter, a New
Hampshire judge believed at the time to harbor
conservative leanings. Because Souter is a bachelor,
his appointment was greeted by speculation that he might be
gay—until reporters found three of his former
girlfriends.

“Souter
had barely left the podium in the press room of the White
House before Republican Party officials were raising
‘the 50-year-old bachelor thing,’ which
was widely interpreted as a way of introducing speculation
that Souter is homosexual,” Margaret Carlson wrote in
Time magazine in August 1990, shortly after
Souter’s nomination.

Justices seldom
discuss their personal lives, and Souter never addressed
the speculation. But almost immediately following his
confirmation, he showed that he would not hew to any
political agenda. He sided with the majority in
Planned Parenthood of Southeastern Pennsylvania v.
Casey
, a 1992 case upholding abortion rights. And in
1995’s Hurley v. Irish-American Gay Group of
Boston
, he ruled that the organizers of
Boston’s St. Patrick’s Day parade had the
constitutional right to keep gay pride banners out of
the parade. But he made sure to pepper the decision
with respectful references to gay rights, and he refused to
countenance parade organizers’ antigay views. Oral
arguments in the case included the shocking sight of
Antonin Scalia, generally considered the
court’s most conservative justice and a die-hard foe
of gay rights, invoking the term “gays,
lesbians, and bisexuals,” as if he had learned
the description from a gay activists’ playbook.

Some have
speculated that justices’ private musings about
Souter’s sexual orientation have elevated the
level of debate about gay rights and the law.
“David Souter isn’t gay, as far as anyone
knows, but there’s enough speculation about it
that his fellow justices have to be a little more
careful about what they say, at least in his
presence,” says a veteran observer of the court
who didn’t want to be quoted by name.
“There’s enough vagueness about him as a
bachelor in this regard to raise the level of debate.
Even something that’s nothing more than rumor can
change the equation. Why would conservatives want to
risk alienating him and losing his vote
forever?”

But Joyce
Murdoch, coauthor of Courting Justice: Gay Men and
Lesbians v. the Supreme Court
, insists that
impressions about Souter’s personal life are
far less critical than the presence of legions of
openly gay law graduates who have descended upon the court
over the past decade. Murdoch says she can think of
four justices who have had at least one out gay clerk
work with them.

“Now even
the most conservative justices are getting clerk applicants
who serve as the head of the Yale Law School gay
student group,” says Murdoch, who is also a
managing editor of the National Journal. “A
disproportionate number of the graduates of top law schools
are gay, and it is changing the entire legal
profession as well as the court.”

A gay clerk also
helped play a major role in the startling turnabout of
Justice Harry Blackmun, who was appointed by President Nixon
in 1970 and retired in 1994. In 1978, Blackmun joined
a dissent in Ratchford v. Gay Lib, a case
upholding the right of gay student groups to meet on
campus. The dissent, written by now–chief justice
William Rehnquist, compared homosexuality to measles
and declared that the “danger” posed by
gay student groups “may be particularly acute in the
university setting where many students are still
coping with sexual problems which accompany late
adolescence and early adulthood.”

When Blackmun
later realized that he’d had a gay clerk at the time
the court heard Ratchford v. Gay Lib, Murdoch
says, he decided to give gay-related cases a more
careful reading thereafter. “For Blackmun, it
was tantamount to finding out that he had a gay son,”
Murdoch says. “It changed what he thought it
meant to be gay. It changed the eyes with which he
read the Constitution. He wanted to be fairer.”

He found the
opportunity in Bowers. Blackmun’s furious dissent in
the case declared, “It is revolting to have no
better reason for a rule of law than that…it
was laid down in the time of Henry IV. It is still more
revolting if the grounds upon which it was laid down have
vanished long since.”

Blackmun’s
education did not end there. Chai Feldblum, a lesbian, came
to know the justice well when she clerked for him from
August of 1986 to July of 1987, the term after Bowers
was handed down. After his dissent a combination of
hate and fan mail poured into his office from around the
nation. “I believe he was radicalized by the response
to the case,” says Feldblum, now a professor of
disability law at the Georgetown University Law Center
in Washington, D.C. “The hate mail told him that
prejudice existed and sodomy laws were part of the
problem. The fan mail came from gay people who said
things like, ‘I am gay, and your dissent meant so
much to me.’ I’ll never forget how much that
meant to him.”

Today’s
court, which boasts a conservative majority, may be poised
to deliver a surprising victory for gay and lesbian
equality. Despite a Republican president who has said
that Texas’s sodomy law is “a symbolic
gesture of traditional values” and a GOP-controlled
Congress hostile to gay rights, there is growing
public opposition to such laws. And court watchers say
this opposition actually may be reflected by two of Ronald
Reagan’s appointees to the court, Sandra Day
O’Connor, who voted with the majority in
Bowers, and Anthony Kennedy, who joined the court in 1988.
In addition to O’Connor, only two justices who
heard Bowers remain on the court—Rehnquist, who
voted with the majority in the case, and John Paul
Stevens, a liberal who joined the dissent.

Lawrence will be
argued based on competing constitutional interpretations
of the right to privacy, equal protection, and
states’ rights. But it also will play out
behind the court’s cloak of tradition and formality,
perhaps reflecting the many changes in society and in the
justices’ relationships with gay men and
lesbians, from family members to law clerks.

“There’s no question the justices are affected
by the evolving understanding of homosexuality in
America,” Murdoch says. “The
Constitution doesn’t mention homosexuality,
heterosexuality, marriage, or even privacy. There are
only grand promises, to which the justices bring their
own views. This is a court that doesn’t want to be
out front. But it also doesn’t want to be
embarrassed, and Bowers was an embarrassment.”

Lawrence v. Texas could not frame the case against
antigay sodomy laws in starker, more personal terms.
Acting on a false tip about a weapon, police entered
John Lawrence’s Houston apartment, where they
discovered Lawrence engaged in sex with Tyron Garner. The
men were charged with “deviate sexual
conduct,” which prohibits “any contact
between any part of the genitals of one person and the mouth
or anus of another person,” jailed overnight,
and later fined. A three-judge district criminal
appeals court reversed the convictions, but they were
reinstated by the full nine-judge panel of the same court.
Represented by Lambda Legal Defense and Education
Fund, Lawrence and Garner appealed that ruling to the
U.S. Supreme Court in 2002.

The fate of Texas
sodomy law may hinge on justices Kennedy and
O’Connor. While little is known about their
personal views on homosexuality, they are experienced
in gay rights cases. Kennedy is the author of the
majority opinion in Romer v. Evans, a 1996 decision
striking down a measure passed by Colorado voters to
prohibit the state and local governments from adopting
bans on antigay discrimination. A state cannot,
Kennedy wrote, make a class of persons such as gays and
lesbians “a stranger to its laws.”

Kennedy and
O’Connor are considered the swing votes between the
justices with perfect antigay
records—Rehnquist, Scalia, and Clarence
Thomas—and those who are thought to be reliable
supporters of gay rights—Ruth Bader Ginsburg,
Stephen Breyer, Souter, and Stevens.

When it comes to
the court’s balance on gay issues, “the Boy
Scout case was a turning point,” Murdoch says.
“Rehnquist has a keen sense of what kind of
language is permissible on the court, and if he wanted to
keep Kennedy and O’Connor on his side [in the
case], he had to drop all the language about
immorality and perversion. The last thing [Kennedy and
O’Connor] want is to have the court be seen as
rubber-stamping discrimination.”

But even with
Rehnquist, one of the more conservative justices, the
desire to appear more even-handed likely is based in more
than an attempt to sway other justices to his side.
When Richard Maloy and Tucker Bobst moved into a new
home on Glebe Road in Arlington, Va., in 1986, they were
surprised to find that their neighbor was none other than
the chief justice. Bobst and Maloy, who recently
celebrated their 55th anniversary as a couple, quickly
befriended Rehnquist and his wife, Nan. The couples
developed a friendship in which they exchanged batches of
holiday cookies and looked out for one another.

One day while
Rehnquist was in court, Maloy noticed that the chief
justice had left his car unlocked and the lights on. In an
unpublished memoir made available to The
Advocate
, Maloy described the note he left on
Rehnquist’s car: “There’ve been car
thefts in the area. Hope to hell you have the keys
’cause I’ve locked it and turned off the
lights. Best mend your ways! Signed, Your neighbors,
Sherlock and Watson.”

A few months
later, Maloy and Bobst put their home up for sale.
“The day I put the open house–for sale
sign out, [Rehnquist] came over, threw his coat over
the sign, and said, ‘You can’t move.
Who’s going to tell me my car’s unlocked
and the lights are on, and to mend my ways?’”

Maloy says he and
Bobst were well aware of the chief justice’s antigay
stand in Bowers. “We realized our friendship
was a contradiction,” he says today.
“But we feel that being neighbors is more important
than any disagreement you might have, and you have to
make sure your neighbors know you will look out for
them no matter what.

“We live
openly, and Bill and Nan knew the truth about us. We
didn’t need to explain it to them,”
Maloy adds. “We hoped that by getting to know us,
he would understand a little better the real-life
implications of his opinions. He certainly
didn’t want the police banging on our door, and
neither did we.”

Those arguing the
case against the 143-year-old Texas sodomy law can only
hold out a similar hope.

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