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
The Advocate,
March 4, 2003
By Chris Bull
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.
"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 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."
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.
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