It was almost 17 years ago, but it could have been a century. During oral arguments before the Supreme Court in Bowers v. Hardwick, the Georgia sodomy case, Chief Justice Warren Burger blurted out, "Didn't they used to put people to death for this?" In the landmark 5-4 ruling that followed, the nation's highest court upheld the constitutionality of sodomy statutes that to this day are used to deny gay rights claims in courts and continue to spark protests and demands to eliminate the laws across the nation.
Now, as the court is preparing hear another high-stakes challenge to sodomy laws, even the most conservative justices are likely to show far more respect for the legal arguments put forth by those who believe such laws are unconstitutional. For in the years between Bowers and Lawrence v. Texas, which the court is scheduled to hear March 26 and decide by late June, the justices have spent an unprecedented amount of time with out gay men and lesbians and have even faced speculation about the sexual orientation of one of their own, David Souter.
"I was sitting next to Michael Hardwick in the courtroom when Burger boomed that line about the death penalty," recalls Evan Wolfson, who wrote the case brief for Lambda Legal Defense and Education Fund at the time and was part of the appellant team led by well-known civil rights lawyer Lawrence Tribe. "I knew we were doomed right then and there. The court felt like a very hostile place."
Wolfson would know. In 2000 he unsuccessfully argued before the Supreme Court, in Boy Scouts of America v. Dale, that the BSA should not be exempt from state bans on antigay discrimination. "We didn't win that case, so of course I didn't agree with the court's logic. But it didn't feel hostile," Wolfson says. "These days, even when we don't get our way, we are much more likely to get a fair hearing. [The justices] have come a long, long way, and I think that bodes well for Lawrence."
In some ways the Supreme Court's more respectful tone dates to 1990, when the first President Bush nominated Souter, a New Hampshire judge believed at the time to harbor conservative leanings. Because Souter is a bachelor, his appointment was greeted by speculation that he might be gay--until reporters found three of his former girlfriends.
"Souter had barely left the podium in the press room of the White House bet fore Republican Party officials were raising `the 50-year-old bachelor thing,' which was widely interpreted as a way of introducing speculation that Souter is homosexual," Margaret Carlson wrote in Time magazine in August 1990, shortly after Souter's nomination.
Justices seldom discuss their personal lives, and Souter never addressed the speculation. But almost immediately following his confirmation, he showed that he would not hew to any political agenda. He sided with the majority in Planned Parenthood of Southeastern Pennsylvania v. Casey, a 1992 case upholding abortion rights. And in 1995's Hurley v. Irish-American Gay Group of Boston, he ruled that the organizers of Boston's St. Patrick's Day parade had the constitutional right to keep gay pride banners out of the parade. But he made sure to pepper the decision with respectful references to gay rights, and he refused to countenance parade organizers' antigay views. Oral arguments in the case included the shocking sight of Antonin Scalia, generally considered the court's most conservative justice and a die-hard foe of gay rights, invoking the term "gays, lesbians, and bisexuals," as if he had learned the description from a gay activists' playbook.
Some have speculated that justices' private musings about Souter's sexual orientation have elevated the level of debate about gay rights and the law. "David Souter isn't gay, as far as anyone knows, but there's enough speculation about it that his fellow justices have to be a little more careful about what they say, at least in his presence," says a veteran observer of the court who didn't want to be quoted by name. …