legacies

Justice Stevens’ 5 Supreme Court Decisions That Changed Gay Rights Forever

By Daniel Villarreal April 13, 2010 at 1:08am · Updated on February 13, 2011
Supreme Court justices are a bit of a crapshoot. Take sitting Justice John Paul Stevens for instance. President Ford selected him as a moderate conservative, but Stevens ended up one of the most liberal and pro-LGBT justices on the bench. During his 35 years on the court, he treated the Constitution as a living, breathing document flexible enough to address modern-day disputes. He also took on the roles of active questioner during oral arguments and back room diplomat during deliberations. The 90-year-old justice announced his imminent retirement last week, and while LGBT liberals have begun wondering whom Obama will pick to replace him, five of Justice Stevens’ cases did much to lay the groundwork for the three upcoming queer legal battles. Let’s get heavy, and see how these five cases changed America’s gay rights landscape.
 
 
Bowers v. Hardwick (1986)
A Georgia police officer illegally entered the home of Michael Hardwick (on a recalled arrest warrant) and witnessed Hardwick blowing some dude in the privacy of his own bedroom. The officer then arrested Hardwick and his partner on sodomy charges (then defined as oral or anal sex between any two people) and ACLU took it on as the “perfect test case” to challenge anti-sodomy laws. RULING: The 5-to-4 ruling upheld the constitutionality of the Georgia sodomy law. But in their decision, the justices focused solely on gay men, never touching lesbian or heterosexual oral sex (which they all presumably indulged in). Specifically, the court concluded gay sex is not a constitutionally-protected “right.” Chief Justice Warren E. Burger concurred with the ruling saying, “To hold that the act of homosexual sodomy is somehow protected as a fundamental [constitutional] right would be to cast aside millennia of moral teaching.” WHAT DID STEVENS DO?: In his dissent, Stevens wrote, ”[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.’ From the standpoint of the individual, the homosexual and the heterosexual have the same interest in deciding how he will live his own life, and, more narrowly, how he will conduct himself in his personal and voluntary associations with his companions. State intrusion into the private conduct of either is equally burdensome.” His scathing dissent was a key factor in eventually over-turning this ruling. WHY IT MATTERS TODAY: Though states have the right to legislate morality, this astoundingly iniquitous and unfair ruling happened after Roe v. Wade—amid arguments over the privacy guaranteed by the Constitution and courts. The case also occurred in the early stage of the AIDS epidemic when homophobia was growing to a fever pitch. Also, the court considered the law to be fair because it could be applied to all citizens equally, though its enforcement usually targeted gay men. Luckily, Georgia’s own Supreme Court threw out the discriminatory law in 1998 and the Supreme Court struck down all sodomy laws nationwide in Lawrence v. Texas just 17 years later.
 
 
Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995)
In 1947, then Boston city mayor James Michael Curley gave the power of organizing the annual St. Patrick’s Day parade to the private South Boston Allied War Veterans Council. In 1994, the Irish-American Gay, Lesbian and Bisexual Group of Boston (“GLIB”) wanted to march in the parade, and the Council said no. GLIB sought a court order against the Council, citing a Massachusetts law that forbids “discrimination or restriction on account of… sexual orientation.” The Council still refused and canceled the 1994 parade rather than let the queers in. RULING: The court ruled unanimously in favor of the Council. Despite the parade being more of a civic event than a private one, and that the Council granted a permit and access to city streets, the Court ruled, “Private citizens organizing a public demonstration may not be compelled by the state to include groups who impart a message the organizers do not want to be included in their demonstration.” WHAT STEVENS DID: Even though Stevens voted with the majority on this one, the decision isn’t essentially anti-LGBT. Instead, it laid an important precedent that effects LGBT Pride parades and Chambers of Commerce. If an anti-gay group wanted to join a city’s Pride parade or a LGBT Chamber of Commerce, the city would have to defer the decision to the private LGBT group which could then deny the haters without any fear of getting hijacked or sued. WHY IT MATTERS TODAY: To this day, Irish gay and lesbian groups continue to protest, boycott, or hold alternate parades in defiance to their continued exclusion from the Catholic cultural events, most notably in New York City on St. Patrick’s Day. In fact, the protests, boycotts, and alternate parades have almost become part of the tradition. But since the Catholics are now openly embracing child molesters, maybe we queers seem less scary in comparison—we may be marching soon enough!
 
 
Romer v. Evans (1996)
When Aspen, Denver and Boulder started passing laws gay rights laws granting same-sex couples tax and health benefits, the bigots at Colorado for Family Values drafted Amendment 2, a Colorado state constitutional amendment that would have prevented any government recognition of homosexuals as a protected class. RULING: The court ruled 6-3 that Colorado’s Amendment 2 was unconstitutional, concluding Colorado’s anti-discrimination laws do not confer any “special rights” to homosexual citizens but merely extend to them the same rights afforded everyone else. In his decision, Justice Kennedy wrote, “[Amendment 2] is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. [It] seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.” WHAT STEVENS DID: Stevens voted with the majority in this case, which laid the groundwork for Lawrence vs. Texas, the case that overturned sodomy laws nationwide. The triumph of gay rights in this case also laid the groundwork for upcoming court cases, by helping determine when LGBTs are targeted as a class to legislative prejudice. WHY IT MATTERS TODAY: There was a troubling post-script to this case. In 1993, Cincinnati, Ohio passed Ballot Issue 3, a city charter amendment forbidding the adoption or enforcement of civil rights ordinances based on sexual orientation. The Supreme Court refused to hear a case about it and the prejudicial ballot stood until Cincinnati voters overturned it in 2005. The ballot did untold damage to the finances and esteem of Cincinnati’s LGBT citizens during its 12 years. Until we get ENDA passed, any city or county government and private employers can continue to discriminate against us at will.
 
 
Boy Scouts of America v. Dale (2000)
The Boy Scouts of America revoked the membership of lifelong scout and Assistant Scoutmaster James Dale after the organization discovered he was co-president of Rutgers University’s Lesbian and Gay Alliance. The scouts said, “the standards for leadership established by the Boy Scouts of America . . . specifically forbid membership to homosexuals.” RULING: The U.S. Supreme Court voted 5-4 in favor of the BSA’s bigotry, saying that the court could not force an organization “to accept members where such acceptance would derogate from the organization’s expressive message.” The decision also said that the issue wasn’t whether the Scouts were right or wrong, but whether laws should interfere with an organization’s right to free speech. WHAT STEVENS DID: Stevens was on the dissenting side once again. In his dissent, he said that “every state law prohibiting discrimination is designed to replace prejudice with principle… It is plain as the light of day that neither one of these principles – ‘morally straight’ and ‘clean’ – says the slightest thing about homosexuality.” WHY IT MATTERS TODAY: The Boy Scout in question, Dale James, said, “My lawyer, Evan Wolfson from Lambda Legal Defense, has argued an incredible case, and I don’t think any other attorney could have gotten that one other vote. The dissenting opinion was so strong and now Americans can’t think of the Boy Scouts of America without thinking of the issue of homosexuality. The Boy Scouts have forever tarnished their image with this case. Granted, I would have loved to be the victor in this case, but in the end, the only thing you’re really going to remember is that they are the losers in all of this.” Agreed, especially since the BSA just celebrated its 100th anniversary by unveiling decades worth of sexual abuse.
 

 

Lawrence v. Texas (2003)

When 55-year-old medical technologist John Geddes Lawrence started boning 31-year-old Tyron Garner, Garner’s jealous ex, Robert Royce Eubanks, called the police saying there was a man in Lawrence’s apartment “going gun crazy.” The sheriff’s deputy entered the unlocked apartment with his weapon drawn and then arrested the two for sodomy.

RULING: The court ruled 6-to-3 that Texas’ “Homosexual Conduct” law criminalizing gay “sodomy” (but not heterosexual “sodomy”) violated the equal protection clause of the Constitution’s Fourteenth Amendment, which guarantees equal protection regardless of sex. That is, you can’t have a law that just targets just a male-on-male act. Furthermore, the court found that prosecuting private consensual sex acts does nothing to further state interests, a point that Justice Stevens made in his dissent against Bowers v. Hardwick.

WHY IT MATTERS TODAY: In his dissent, Justice Antonin Scalia said states may not be able to prove that bigamy, adult incest, prostitution, statutory rape, and obscenity harm the social good, but that doesn’t mean the laws against aren’t worth upholding. Part of his worry is that people practicing these alleged moral ills will begin to define themselves as sub-classes whose lifestyles are unfairly targeted by certain laws. If drug users, polygamists, and prostitutes all claim “we were born this way,” then where will it end? This knife cuts both ways because even well-intentioned hate crime and affirmative action laws end up favoring one sort of citizen at the exclusion of another and at the expense of more equitable solutions.

COMING UP: We’ll visit three cases that may find their way to the Supreme Court, and our predictions on how they’ll do based court proceedings and Justice Stevens’ work.

Thanks to Aaron Goodman, Patrick Hoffman, and Vance Roper for their additional research and discussion.

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16 Comments*

  • reason

    I was wondering when this site would give Justice Stevens, a man who has done so much for this community while serving in one of the most powerful positions in this country, the adulation that he deserves. The delay has me questioning the values of this community, an 18 year old going to the prom is loaded with applause while Stevens hasn’t been mentioned though it has been known for days that his retirement is imminent. I am not saying that a mom support of her son and his ability to go to prom with a same sex date is not a great thing, but to post that before a word about Stevens? For a person who is surprised less often, it is still a bit unsettling.

  • Devon

    Thank you, Justice Stevens. I admit that I’m woefully uninformed about the supreme court justices and most of the cases they hear. But from the sound of it he’s been a rare voice of reason in Washington.

    Hopefully whoever Obama picks as a replacement is cut from the same cloth.

  • Daniel

    @reason: “The delay has me questioning the values of this community.”

    It’s totally my fault. It took me 20+ hours to look up, read, and understand all his cases (including talking with constitutional scholars), and write the darned thing. Though I’m trying to get faster.

  • Mike in Asheville, nee "in Brooklyn"

    @ No. 3 Daniel

    Good article, tightly written and informative.

    A minor correction: you cite the Bowers v. Hardwick decision as 7 to 4; should be 5 to 4.

    There is also one very annoying point, though I an unsure where to point the blame. Once again as St. Patrick’s Day approached, there is the standard article criticizing the standing rules against Irish-American gays/lesbians marching in the parade in NYC. Fine, I think they should be able to march. BUT, while posting the article, Queerty never cites let alone mentions the Hurely (Boston’s can the gays march in the parade) case. In today’s article, you lay out what happened, the decision, and the good aspects that the decision has on PROTECTING the LGBT community’s ability to hold its own pride parades and functions without the fear that anti-gay groups would be there spewing their hatred within our pride events.

    “Baiting” your readers is not the best method of enlightening us with information that helps us all to promote our civil rights.

    Catty articles are all fine and dandy and sometimes fun. But articles such as this one provide so much more.

  • tjr101

    I must say this is by far one of the best and most informative articles I’ve seen on Queerty. Justice Stevens is one of the finest jurists in this nation’s history and he would be hard to replicate.

    Its important that the president chooses someone of similar integrity and ideological leaning. Our country and the LGBT community’s future depends on bringing the SC back to equilibrium from the drastic right-ward tilt it’s taken during the last 10 years.

  • Lanjier

    Great job, Daniel. Such a wonderful thing you have done by honoring these wonderful liberals on the court. I still remember how bad I felt when I read Bowers v. Hardwick when it was decided, and how elated I was when that opinion was finally thrown in the trash by Lawrence v. Texas.

    In Romer v. Evans, the first true gay rights Supreme Court opinion, that ignorant crumb Scalia characterized the issues and the gays in the case as simply having a “fit of spite” — a homophobic slam if I ever heard one. He was enraged that the future of his precious hate case Bowers was on the chopping block. I will never forget the glee at seeing his temper rise so high he would actually belittle a party to the case, and their lawyers.

    Scalia’s use of the term “fit of spite” is one reason I think the majority made the point that when you strip all the false reasons for the necessity of the hate law, the only thing left — the real motive behind the law — was “animus.”

  • D'oh, The Magnificent

    @Daniel: You did a really good job. It is far more important you took the time to get it right rather than using the McWriting approach that we all are used to doing on blogs.

  • reason

    @Daniel: Usually a site will at least break the news then continue to build on the story as time passes. This gets the readers engaged, they can start looking into it and as you release more information an educated discussion will ensue. In other words I stand by my comments that a story with such gravity should have been mentioned days earlier. That is just my opinion to make the site better and to do more justice to the readers, and the cause. I am appreciative that you have spent time on the subject, and slightly regretful that I scolded you in front of your readers, but when I have tried to express a grievance privately, blocked post etc., I received no response or resolution. Maybe like a rotten child I pursued another avenue. Anyways thanks for your work, even the parts I disagree with, and I look forward to reading your background information on possible nominees. I hope you value my opinions as well.

  • Ryan

    While I appreciate this article, I want to point out that the Equal Protection Clause was ultimately not the lynchpin of the Lawrence v. Texas holding. Justice Kennedy focused on the liberty provision of the 14th Amendment’s Due Process Clause, which in many ways makes the decision even more important (this was the argument Stevens put forward in his Bowers dissent). The reason we got to 6 votes rather than 5-4 is because Justice O’Connor concurred in the result based on the Equal Protection argument you described as the “holding” of the Court. In other words if the Texas statute had outlawed sodomy without respect to gender, she would have voted to uphold it, but because it targeted gays, she voted with the majority.

    It’s not simply splitting hairs then to point out the liberty provision of the Due Process Clause struck down ALL laws aimed at private consensual sodomy, regardless of gender, because laws aimed at prohibiting private consensual conduct served no rational purpose. It’s actually the Due Process liberty provision holding, rather than O’Connor’s Equal Protection position that is why Lawyrence “matters” going forward. The big decisions coming in the years ahead, if they come at all, are actually going to be grounded in the Due Process Clause, rather than the Equal Protection Clause (it’s not accident, for example, that it provided the bases for Loving v. Virginia in 1967 striking down Virginia’s anti-miscegenation marriage statute).

    All best,
    RY

  • Daniel

    @reason: Speed is something I’m having to rise to
    as a fledgling blogger. I come from an academic journalism background that focuses more on research and refinement. But I agree with you suggestion and believe me, David would have loved to have this article out sooner. He’s been patient but persistent in his attempts to increase my speed.

    I’m glad you stand by your comment and don’t regret being “scolded” (as you say) in the least. Bloggers answer primarily to our readership (and to lawsuit threats) and so I appreciate fair criticism. I also thoroughly enjoy reading comments and try to respond whenever someone raises a valid point.

    I like this blog very much and am working hard to provide quality content that educates and entertains our ENTIRE community. Over time I hope to put the “queer” back in Queerty by providing more lesbian and bisexual content as well as coverage for people of color, older age, HIV+ LGBTs, as well as the local activists, artists, and issues that usually slip by most national blogs.

    Thanks so much to all of you for your continued support. Your input keeps me motivated to try my best.

  • D'oh, The Magnificent

    @Daniel: Please ignore Reason. Volume is not the mark of excellence. I would prefer you go slow to get it right than fast and create crap.
    @Ryan: You are correct as the equal protection analysis would have a much broader and far reaching impact. However, it does open the door for equal protection analysis a little bit. Thus, Scalia’s dissent.

  • zenflo

    Yes, yes. I have been guilty of bashing the Q.

    On any given day I might be seated comfortably, eating my tuna-salad sandwich or diddling myself with one hand, and with the unsticky hand, typing acerbic retorts that assailed Queerty editors for articles that were truly stillborn in the cold light of day.

    And mind you, the Q will be receiving my therapist’s invoice that corresponds to the week it published “Six Bad Things Gays Do on an Airplane” or whatever it was.

    But look! Look here!

    It rises from above the murky mists — and lo, what have we here?

    I see it now.

    It is — gadzooks! — a fine Queerty article. It is timely, it required intellectual effort, and the author was gracious enough to uncloak for us. And the headline…

    “groans with effort”

    the headline … made sense!

    So you know, um, cheers, cheers, thanks a lot.

  • doubter

    @reason: you’re an idiot. “questioning the values of this community”….there is more meat in this article than most of the paltry blogs on the web…a good scotch takes years to produce, and a good article can take more than a few clicks of a mouse and cutting and pasting on a word processing program. get over yourself…

  • reason

    @Daniel: I look forward to reading your future work, it sounds like you will be providing a refreshing change to this site. Accepting constructive criticism with such grace informs me that you are intellectually mature and your advisor was a good educator. I am excited that I might actually learn something on here, or at the very least be mentally engaged. Thanks for taking the time to respond, that is already a pleasant change. I would appreciate it if you identified yourself, so I know whose work I am reading.

  • jeffree

    @Daniel: You wrote a clear, crisp, and thoughtful article. No need to apologize.

    What was best in your writing was the comparision between what the popular opinion was –at that time– and what he saw as just, fair, & moral. His dissenting opinions showed that our constitution is in fact a living, breathing thing, and that even if someone is out-voted, s/he still *must* and *should* voice an opinion.

    Since matters of Constitutional Law hinge on precedent, his voice may have been ahead of its time but it is IN THE RECORD. The rights of LGBs would +NOT+ be where they are today without his opinions.

    Justice Stevens may have been in the minority on some key issues, but he trumped Scalia in terms of argumentation and debate.

    My hope is that the far right wing of Congress recognizes that the truth behind his reasoning & will not block some nominee just because s/he too sees our Constitution as something that –like everything & everyone– is a work in progress.

    Stay brave Daniel! Thoughtful journalism needs careful thinkers like you!

  • ulissey

    Loved the article. The whole system of law making in the USA is so different from the French one, and quite baffling.the link to this article is in today’s “TETU” website.

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