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

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.


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.


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!


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.


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.


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.