John Paul Stevens, who died Tuesday at age 99, leaves a legacy of LGBTQ rights advocacy as a U.S. Supreme Court justice.
During Stevens’s tenure on the court — 1975 to 2010 — he dissented from a ruling that upheld antisodomy laws and joined the majority in the ruling that finally struck them down nationwide. He also joined the majority in the decision to nullify Colorado’s Amendment 2, which blocked gay rights laws throughout the state. He supported abortion rights, campaign finance reform, and gun restrictions, and opposed the death penalty.
His record led some to dub him a champion of liberal causes, but he was nominated to the court by a Republican president, Gerald Ford, after having been named to a lower federal court by another GOP president, Richard Nixon. He thought of himself as a Republican when he was appointed, he told The New Yorker in an interview upon his retirement, but he declined to stay if he still did. He did observe that “things have changed” over the years, with moderate Republicans becoming rare.
Stevens’s first major gay rights case was Bowers v. Hardwick in 1986, in which the high court upheld state antisodomy laws in a 5-4 ruling. Stevens was in the minority, and he wrote a “ringing dissent,” as a blogger at the Constitutional Accountability Center described it.
“Although the meaning of the principle that ‘all men are created equal’ is not always clear, it surely must mean that every free citizen has the same interest in ‘liberty’ that the members of the majority share,” Stevens’s dissent reads in part. “From the standpoint of the individual, the homosexual and the heterosexual have the same interest in deciding how he will live his own life, and, more narrowly, how he will conduct himself in his personal and voluntary associations with his companions. State intrusion into the private conduct of either is equally burdensome.”
Stevens stayed on the court long enough to see Bowers v. Hardwick reversed, in Lawrence v. Texas in 2003. He helped solidify Justice Anthony Kennedy’s vote to invalidate antisodomy laws by asking him to write the majority opinion, according to a 2007 New York Times Magazine profile. “Sometimes, in all candor, if you think somebody might not be solid, it might be wiser to let that person write the opinion,” he told the magazine, as writing the opinion forces that person to defend their position and become more convinced of its validity. “It worked out OK,” he added. “I don’t know if I’m entitled to the credit or Tony’s entitled to the credit, because he wrote an exceptional opinion.” Kennedy did give Stevens some credit in the opinion, saying Stevens’s analysis in Bowers was correct.
Stevens also joined the majority in favor of gay rights in 1996’s Romer v. Evans, which struck down Amendment 2, a ballot measure approved by Colorado voters that prohibited the state or any of its cities and counties from adopting or enforcing laws that banned antigay discrimination. This was the first pro-gay ruling ever to come from the Supreme Court, and Kennedy wrote the majority opinion.
Stevens had retired from the court (he was replaced by Elena Kagan) by the time it ruled for nationwide marriage equality in 2015, but he praised the ruling in a speech to the American Bar Association shortly afterward. “The right to marry — like the right to decide whether to have an abortion or the right to control the education of your children — fits squarely within the category of liberty protected by the Due Process Clause of the 14th Amendment,” he said.
In the same speech, he added, “It borders on the absurd to assume that the word ‘liberty’ does not include one’s right to choose a spouse, but does include a right to possess a firearm in one’s home.” Indeed, in his 2014 book Six Amendments: How and Why We Should Change the Constitution, he recommended altering the Second Amendment to clarify that it applied only to gun ownership by state militias, not private citizens. In the same book he called for campaign finance reform and for an end to the death penalty.
Regarding campaign finance, Stevens dissented from the 2010 Citizens United ruling, in which the court majority paved the way for greater corporate influence in politics by saying they have free speech rights similar to those of individuals. Another major ruling he did not go along with was 2000’s Bush v. Gore, which stopped the recount of votes in Florida and therefore handed the presidency to George W. Bush.
Stevens’s views became more liberal over the years, with his position on the death penalty evolving from concern about its administration to outright opposition, The New York Times notes in its obituary. He also became more supportive of affirmative action.
He attributed the gradual changes to what he learned while a member of the judiciary. “Learning on the job is essential to the process of judging,” he said in a Fordham University speech in 2005, when he had been a judge for 35 years and on the Supreme Court for 30. “At the very least, I know that learning on the bench has been one of the most important and rewarding aspects of my own experience over the last 35 years.”