High Court Homophobia

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July/August 2001


High Court Homophobia

By Stephanie Mencimer


Courting Justice: Gay Men and Lesbians v. the Supreme Court

By Joyce Murdoch and Deb Price
Basic Books

Click on the title to buy the book
In 1953, when a group of brave souls in a seedy garment district of Los Angeles launched the nation's first gay magazine, gays and lesbians were thought to be as dangerous and sneaky as communists, lurking everywhere and threatening the nationıs moral foundation. Not surprisingly, a year after it started, the Postmaster General dubbed ONE magazine obscene and banned its distribution.

Tame by modern standards, ONE hardly matched the girlie magazines of the time and only delicately talked about sex. (In one short story, a lesbian couple touched each other four times before living happily ever after‹which was apparently the storyıs real crime in the eyes of the government.) But that didnıt stop the 9th Circuit Court of Appeals from branding the October 1954 issue of ONE ³morally depraving and debasing."

When ONE decided to fight the L.A. postmaster over its decision, even the ACLU wouldnıt represent it, having defended the constitutionality of laws that made homosexual behavior criminal. But ONEıs editors did manage to find a lawyer, and much to their surprise, in 1958, the U.S. Supreme Court took up their case, its first ever dealing with homosexuality. Even more shocking, without even hearing arguments in the case, the court ruled in ONEıs favor, giving life to the countryıs gay rights movement more than a decade before the Stonewall Riots.

Yet ONE Inc. v. Olesen barely made The New York Times, and today, even many gay rights activists likely havenıt heard of the landmark Supreme Court decision. Thatıs probably because it was followed by four decades of hostile rulings from the nationıs top court relegating gays and lesbians to second-class citizenship. In a remarkable piece of reporting, writers Deb Price and Joyce Murdoch resurrect ONEıs story, along with many others, in fresh detail in their new book, Courting Justice: Gay Men and Lesbians v. the Supreme Court.

Murdoch, managing editor of the National Journal, and Deb Price, the first nationally syndicated columnist on gay and lesbian issues, have scoured the National Archives, interviewed former court clerks, and tracked down many of the original plaintiffs and defendants to hear their tales. The stories they tell are as much about cases the justices actually heard as the ones they turned down. Read together, the decisions show a pattern of absurdly contradictory rulings that single out gays and lesbians for exceptions to civil liberties accorded to other minority groups.

Some of the most egregious examples of the courtıs disregard for the constitutional rights of gay citizens come in the bookıs study of sodomy laws, which have been used to justify all sorts of persecution of homosexuals. Many of those cases involve men who were arrested for propositioning undercover cops. Usually, the cops were trolling gay bars or known cruising spots, where the victims had a reasonable supposition that the objects of their desire were of a similar persuasion.

As recently as 1996, the court turned down the case of a gay Oklahoma man who had been prosecuted after an undercover cop tricked him into saying that he enjoyed oral sex. The court has never ruled that such encounters are protected free speech the way they likely would for straight men who proposition women. (After all, if men were prosecuted for hitting on women, half the country‹including Justice Clarence Thomas‹would be in jail.)

The courtıs most famous sodomy case began in 1982, with a 28-year-old Atlanta bartender, Michael Hardwick. Hardwick was at home when a police officer entered his house without Hardwickıs knowledge and found Hardwick and a guest engaged in mutual fellatio. Hardwick was arrested and charged with violating Georgiaıs sodomy law, which made even consensual oral and anal sex a felony that carried up to a 20-year prison sentence.

This time, the ACLU took the case. In 1985, the 11th Circuit ruled in Hardwickıs favor, saying that the sodomy law infringed upon fundamental constitutional rights by criminalizing private acts among consenting adults. Georgia Attorney General Michael Bowers asked the Supreme Court to intervene, arguing that ancient scholars ³considered even consensual sodomy to be as heinous as the crime of rape." (Later, in 1997, while running for governor, Bowers was forced to admit that he had been cheating on his wife for 15 years. His mistress told the world, ³As far as sodomy is concerned, Mike Bowers is a hypocrite.")

At the Supreme Court, Hardwick was apparently the source of much anguish for Justice Lewis Powell, who claimed heıd never met a homosexual, despite having a knack for unknowingly hiring gay clerks, including one he consulted about the sodomy case. Powell initially voted in conference in favor of Hardwick, but at the last minute, with prompting from a conservative Mormon clerk, changed his mind, giving the court a 5-4 majority against Hardwick. After he retired, Powell acknowledged that his vote in Hardwick had been a mistake.

Price and Murdoch actually tracked down Powellıs gay clerk and found that he has been kicking himself ever since for not telling Powell he was gay before the Hardwick vote‹a lesson about the potential power of coming out in changing attitudes. The Hardwick ruling, heralded by the Reagan administration, has since been used as a weapon by homophobic lower-court judges who read Hardwick as proof that gays do not have sexual privacy rights, and that singling them out for second-class treatment is constitutional.

Price and Murdoch devote a large chunk of their book to some of the untold numbers of cases where people have been fired or denied jobs simply because of their sexuality, noting that the court has almost never come to their aid. The one exception is the mind-boggling story of Army Staff Sgt. Perry Watkins, who served 16 years in the military as an openly gay man. Watkinıs sexual orientation would have been hard for the military to ignore. He was a drag queen, and performed all over Europe in Army clubs as ³Simone," even getting written up in Stars and Stripes.

The Army finally decided that it looked bad to have Watkins in the ranks when so many other gay and lesbian servicemembers were getting kicked out, so they tried to discharge him, four years short of retirement. Watkins sued, and the 9th Circuit eventually ruled in his favor. Despite arguments from then-Solicitor General Ken Starr, the Supreme Court let Watkins'victory stand, and he remains the only openly gay member of the military ever to claim such a high-court victory.

Courting Justice stretches a bit when it tries to read too much into some of the cases the court turned down, and also overreaches occasionally when the authors try to analyze each justiceıs personal view of gays as the basis for their decisions. Still, Courting Justice does offer up a compelling sociological study on changing attitudes. For instance, Justice Harry Blackmun had supported upholding Virginiaıs sodomy law in 1976, but a decade later, he not only voted to overturn Georgiaıs sodomy law in Hardwick, but wrote a magnificent dissent that would form the building block for future gay rights cases.

Chief Justice William Rehnquist, though, has never believed that gays and lesbians have equal rights, even to freedom of assembly or freedom of speech. In a 1978 dissent involving a Missouri gay student group suing for the right to campus standing, Rehnquist reasoned that gays were like people with a contagious disease, and that the government had every right to discriminate against them to protect the public. He assured that experts had established the danger of allowing gays to meet together as part of an officially recognized group, especially in a university setting, where they could infect other tender youths. Rehnquistıs rhetoric has cooled some since then, but not his attitudes.

Fellow conservative Sandra Day OıConnor is harder to read, and her record on gay rights is especially interesting, given that she is likely to be Rehnquistıs replacement as chief justice. OıConnor voted with the anti-gay majority in Hardwick, but a decade later, in Romer v. Evans, she surprised everyone and voted with the majority to overturn Coloradoıs infamous Amendment 2. The amendment, defended at the time by now-Secretary of the Interior Gale Norton, would have deprived gay and lesbian citizens of basic civil rights without giving them any legal recourse to challenge discrimination. OıConnor was the only justice who had voted in favor of Hardwick and then against Amendment 2 in a decision that, for the first time, declared that gay citizens might have the right to equal protection.

But as Murdoch and Price show so well, just when the brethren offer gays and lesbians the hope of progress, they dash it with another contradictory ruling. Four years after Romer, the court ruled, with OıConnor in the majority, that the Boy Scouts of America had the right to exclude troop leaders based solely upon their sexuality. As Justice John Paul Stevens said in dissent, ³Unfavorable opinions about homosexuals Œhave ancient roots,ı" and Murdoch and Price show how much the work for their acceptance, at least by the nationıs highest court, is only beginning.

Stephanie Mencimer is an editor of The Washington Monthly.

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