Balance of
justice

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.