By Lisa Keen
WASHINGTON – If you had told gay protesters 19 years ago that they would be mourning the retirement of Justice Sandra Day O’Connor in 2005, they probably would have scoffed heartily at your judicial acumen.
In July 1986, hundreds of gay men and lesbians staged a raucous protest outside a hotel in San Francisco where O’Connor was speaking to express their outrage at her voting with a U.S. Supreme Court majority to uphold laws banning sex between consenting same-sex adults. Even in the cold and rain of December that year, a crowd of gay protesters stood outside a University of Pennsylvania building where O’Connor was appearing. Though she was the first woman member of the nation’s highest court, this Reagan appointee gave a critical fifth vote to a decision that haunted gays for almost two decades.
The gay community’s anger over the Bowers v. Hardwick decision, noted one reporter at the time, rivaled the fury expressed when San Francisco Supervisor Dan White was given a lenient sentence for assassinating openly gay Supervisor Harvey Milk and Mayor George Moscone. The decision was used against gays in a broad spectrum of cases – barring them from the military, stripping them of parental rights, and branding them as outlaws.
But on Friday, July 1, 2005, the gay community reacted with sorrow to the news that O’Connor had submitted her resignation after 24 years on the court.
“This is a sad day for the Supreme Court and for America,” said National Gay and Lesbian Task Force Executive Director Matt Foreman. “Justice O’Connor has frequently been an essential vote and voice of reason in crucial decisions involving basic constitutional rights.”
“The loss of Justice O’Connor’s moderate voice is a serious threat to gay, lesbian, bisexual and transgender rights,” said Joe Solmonese, president of the Human Rights Campaign.
It wasn’t always so, and O’Connor’s transformation on the high court, coupled with the unpredicted reality that some Republican appointees expected to be conservative have leaned leftward at significant moments, should bring a measure of solace to those in the gay community who worry that O’Connor will be replaced with a rabid right-winger.
It should bring solace, but it won’t. The political landscape is very different now than when O’Connor or Justices Anthony Kennedy and David Souter were appointed. Though it was believed that President Reagan had nominated a conservative in O’Connor, she studiously avoided taking sides on the hot button issue of abortion during her confirmation hearing in 1981. Gay issues weren’t even on the Senate’s radar back then, and as the first female nominee, O’Connor won the support of 99 senators (one abstained).
Democrats held the majority in the Senate when Justices Kennedy and Souter were nominated by Presidents Reagan and Bush (the senior). When a second seat opened up on the Supreme Court for Reagan, he ultimately had to choose a moderate because his initial choice, ultra-right-wing jurist Robert Bork, went down in a blistering defeat and his next choice, Douglas Ginsburg, had to withdraw because of reaction to his honesty about having smoked marijuana.
But when President George W. Bush nominates a replacement for O’Connor, he will have the benefit of a Republican majority in the Senate and the goading of a salivating Christian right-wing pack. And, as has been widely publicized, Bush’s personal preference in Supreme Court justices looks and sounds like the court’s ultra-conservative Justices Antonin Scalia and Clarence Thomas.
Certainly the prospect of who will replace O’Connor is a large part of the grief expressed by gay groups in reaction to O’Connor’s retirement. But O’Connor has earned the respect of the gay community.
It was a long, slow change that moved O’Connor leftward on the bench to a middle ground where gays felt they could hope for some measure of fairness from her.
In one of her first dealings with a specifically gay case in which her vote could be discerned, O’Connor voted with six other justices to deny the appeal of a bisexual teacher who lost her job “solely because she was bisexual and had told her secretary and some fellow teachers that she was bisexual,” according to the only two dissenting justices, William Brennan and Thurgood Marshall. That was 1984.
Two years later, she voted with the majority to uphold state laws prohibiting sodomy between consenting same-sex adults.
But the following year, she supported an interpretation of a federal law that protected people with communicable diseases, such as AIDS. And she agreed that a local ordinance in Houston was used by police to harass gays. Most significantly that year, she splintered her position in a case in which the majority ruled that the U.S. Olympic Committee could prevent the organizers of the Gay Games from calling the event the Gay Olympics. Making her own comment on the decision, O’Connor said she thought the Gay Games organizers should have equal protection.
Those votes in 1987 made some gay legal observers sit up and take notice. But her positions on gay-related cases over the next few years swung back and knocked them over. She voted against gays in all four specifically gay cases. And in part because of the uncertainty around O’Connor’s vote, gay legal activists began to actively avoid taking cases to the U.S. Supreme Court.
But in the past ten years, O’Connor voted for equal rights for gays in three out of five cases, including the blockbusters – Lawrence v. Texas, which struck down state laws prohibiting sodomy between consenting same-sex adults, and Romer v. Evans, which said ballot initiatives which attempted to carve gay people out of protections under the law were unconstitutional.
Although she voted against requiring the Boy Scouts to treat gays equally and against the right of gays to participate as an entity in Saint Patrick’s Day parades, her vote in Lawrence really turned the right-wing sentiments against her. And thus her loss to the court is mourned more by those who have benefited in recent years from her refusal to color inside the lines of one particular political ideology.
Regardless of what the religious “right” tries to tell us, the U.S. Senate isn’t supposed to act as a rubber stamp, approving any and all Supreme Court candidates proposed by a U.S. President regardless of the candidate’s potential to aid or hurt our vital civil rights. In its Constitutionally-mandated “advise and consent” capacity, the Senate instead is supposed to evaluate candidates who, if approved, will sit on the highest court in the land for life.
George W. Bush has already proved his penchant for nominating far-right extremists to top courts. If he succeeds in putting a William Pryor-like justice on the Supreme Court, it could take decades to undo the damage. The LGBT community owes itself – and the rest of the country – its voice to make sure this doesn’t happen.
Contact our Senators
Contact Michigan’s U.S. Senators, Debbie Stabenow and Carl Levin, and urge them to oppose any right-wing activist judges nominated by Bush.
Senator Carl Levin – 269 Russell Office Building, U.S. Senate, Washington, DC 20510-2202. Call 202-224-6221. Email Senator Levin by visiting the Contact Center on his website at http://www.senate.gov/~levin.
Senator Debbie Stabenow – 133 Hart Senate Office Building, Washington, DC 20510. Call 202-224-4822 or TTY: 202-224-2066 or e-mail email@example.com.
To learn more about the importance of federal courts, including the Supreme Court, and George W. Bush’s attempts to pack the courts with extreme activist judges, visit Independent Judiciary, a project of the Alliance for Justice, at http://www.independentjudiciary.com