COURTING JUSTICE: Gay Men and Lesbians v. the Supreme Court. - Review - book review

Washington Monthly, July, 2001 by Stephanie Mencimer

Price and Murdoch actually tracked down Powell's 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. Watkin's 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 "Simone," 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 justice's 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 Virginia's sodomy law in 1976, but a decade later, he not only voted to overturn Georgia's 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. Rehnquist's rhetoric has cooled some since then, but not his attitudes.

Fellow conservative Sandra Day O'Connor is harder to read, and her record on gay rights is especially interesting, given that she is likely to be Rehnquist's replacement as chief justice. O'Connor 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 Colorado's 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. O'Connor 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.