Books: Homosexuality and the High Court
Washington Post,
June 10, 2001
1150 15th Street NW, Washington, DC 20071
Email: letterstoed@washpost.com
By Hastings Wyman
Courting Justice: Gay Men and Lesbians v. the Supreme Court; By Joyce
Murdoch and Deb Price; Basic. 582 pp. $32.50
In "Courting Justice," journalists Joyce Murdoch and Deb Price
have provided a fascinating behind-the-scenes look at the U.S. Supreme Court
and a thorough survey of its treatment of gay Americans. The book is not only
accessible to a general audience but even lively.
For example, the authors tell the story of Frank Kameny, an astronomer from
the District with a Harvard PhD, who was informed in 1957 that he couldn’t
draw maps for the Army Map Service because he was gay. In his self-drafted
Supreme Court brief, Kameny called the government’s anti-homosexual policies
"a stench in the nostrils of decent people." We learn that at least
one former justice, Frank Murphy, who served from 1940 to 1949, was probably
gay. And we read that these very thorough journalists "found not one
shred of evidence" to confirm rumors that Justice David Souter, who has
never married, is gay.
The authors interviewed 103 former law clerks for Supreme Court justices
— slots reserved for the brightest and most promising law graduates. Among
this august group, they found 18 gay men and four lesbians — a significantly
higher proportion than in the population at large. (They note that though
Justice Lewis Powell once said he had never known a homosexual, four of his
clerks were gay.)
Americans are accustomed to thinking of the Supreme Court as the prime
mover in civil rights and other momentous changes. But "Courting
Justice" points out that for years the court seemed squeamish about
entering the thicket of homosexuality. In the 1960s and ‘70s, it routinely
refused to review lower-court decisions that had gone against gay people.
Later, as the gay liberation movement began to win judicial victories, the
Supreme Court often denied certiorari to the anti-gay side.
Three exceptions to this nonintervention policy stand out among the cases
discussed in the book. ONE Inc. v. Oleson, in 1958, upheld the right of
homosexual publications to use the U.S. Postal Service, paving the way for a
major expansion of the gay press. In 1986 gay rights advocates suffered a
major defeat. In Bowers v. Hardwick, the court ruled 5 to 4 that the Georgia
law criminalizing sodomy was constitutional. Such laws have been enforced more
often than is generally believed. As recently as 1972, 85 people were in
Florida prisons for "crimes against nature." Moreover, anti-sodomy
laws are frequently used against gay people in such matters as adoption and
child custody.
With Romer v. Evans, in 1996, the court handed the gay movement a major
victory. Its decision that a state’s voters do not have the right to prevent
the state legislature and local jurisdictions from enacting protections for
gay people halted a major assault by the religious right against numerous
local gay rights laws across the country.
In their disappointment at the court’s limited leadership in this area,
the authors fail to appreciate that many of the movement’s goals are being
met — albeit gradually — through other avenues. The Supreme Court may have
ruled that Georgia’s anti-sodomy statute didn’t violate the U.S.
Constitution, but the Georgia Supreme Court later declared the law in
violation of the state’s own constitution. The high courts of Arkansas,
Kentucky, Montana and Tennessee have made similar rulings. When the Supreme
Court decided the postal case in 1958, homosexual acts were outlawed in every
state; today, by virtue of state judicial or legislative action, the number of
states banning sodomy is 16. According to the National Gay and Lesbian Task
Force, more than 100 cities prohibit job bias against homosexuals. In
addition, 12 state legislatures have enacted employment protections for gay
people, Maryland being the most recent.
During the current legislative session, the Alabama House of
Representatives added sexual orientation to its hate crimes law. And in Texas,
four pro-gay measures are making their way through the legislature. On the
federal level, while the court ruled, in 1967 in Boutilier v. INS, that the
Immigration and Naturalization Service could bar gay immigrants, in 1990 Rep.
Barney Frank (D-Mass.) pushed a bill through Congress to delete the ban.
Similarly, President Clinton’s executive orders addressed many gay concerns
about federal employment. While such progress is slower than a victory in the
Supreme Court, when it happens the anti-gay forces cannot claim that the
changes in the way homosexuals are treated have been imposed from on high.
Though promising to tell this story "as objectively as possible,"
Murdoch and Price, who are lesbians, have a great deal of trouble doing so.
They show little appreciation for the conservative view that Supreme Court
decisions are ultimately concerned only with the U.S. Constitution, its
language and meaning. Rather, they view the court as a supra-legislature,
concerned with policy outcomes, not legal precedent.
Murdoch and Price may also exaggerate the role that personal bias plays in
the justices’ decisions. However, they cite Chief Justice Charles Evan
Hughes telling Justice William O. Douglas: "At the constitutional level
where we work, 90 percent of any decision is emotion. The rational part of us
supplies the reasons for supporting our predilections."
On balance, this book is an admirable reflection of the authors’ vast
research. Future court scholars will keep "Courting Justice" on a
short shelf of tomes that elucidate the court’s inner workings. And those
interested in the changing role of gay people in American society will find it
indispensable.
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