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COURTING JUSTICE: Gay Men and Lesbians v. the Supreme Court. - Review - book review
Washington Monthly, July, 2001 by Stephanie Mencimer
COURTING JUSTICE: Gay Men and Lesbians v. the Supreme Court by Joyce Murdoch and Deb Price Basic Books, $32.50
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 nation's moral foundation. Not surprisingly, a year after it started, the Postmaster General dubbed ONE magazine obscene and banned its distribution.
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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 story's real crime in the eyes of the government.) But that didn't stop the 9th Circuit Court of Appeals from branding the October 1954 issue of ONE "morally, depraving and debasing."
When ONE decided to fight the L.A. postmaster over its decision, even the ACLU wouldn't represent it, having defended the constitutionality of laws that made homosexual behavior criminal. But ONE's 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 ONE's favor, giving life to the country's 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 haven't heard of the landmark Supreme Court decision. That's probably because it was followed by four decades of hostile rulings from the nation's top court relegating gays and lesbians to second-class citizenship. In a remarkable piece of reporting, writers Deb Price and Joyce Murdoch resurrect ONE's 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 court's disregard for the constitutional rights of gay citizens come in the book's 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 court's 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 Hardwick's knowledge and found Hardwick and a guest engaged in mutual fellatio. Hardwick was arrested and charged with violating Georgia's 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 Hardwick's 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 "considered 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, "As 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 he'd 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.
