By Lisa Keen
WASHINGTON – No justice has voted against the interests of gays more times than Chief Justice William Rehnquist. And yet, under no Chief Justice have gays seen more significant gains than Rehnquist. The paradox was a product of the length and timing of his tenure on the U.S. Supreme Court. Rehnquist’s 33 years on the court began less than three years after the Stonewall Rebellion and ended Saturday night when Rehnquist died at his home in northern Virginia after a long struggle against cancer.
Rehnquist was beloved by conservatives and those who seek a fundamentalist interpretation of the U.S. Constitution, yet Rehnquist found implicit rights to justify rulings that enabled discrimination based on sexual orientation. What Rehnquist did not do, however, was to give voice – as some justices have – to any personal dislike he may have harbored against gay people. His darts against gay people were constructed strictly from points of law.
With the passing of Rehnquist, President Bush moved swiftly to nominate a former Rehnquist clerk, federal appeals court Judge John G. Roberts Jr., to take his place as chief justice.
Bush originally nominated Roberts in July to replace retiring Justice Sandra Day O’Connor; but, at 8 a.m. on Monday, he announced that he was withdrawing Roberts’ nomination to that position and submitting it instead for the office of chief justice. O’Connor agreed later that morning to stay on the bench until the president can have another nominee confirmed to take her place. Thus, when the Supreme Court opens its 2005-06 session on Oct. 3, it is likely to be sporting but one change: at the top.
Given that Roberts’ conservative leanings will be replacing those of Rehnquist, the makeup of the court will be essentially the same for at least the first few weeks of the next session. However, by the time the first gay-related case is argued – in November, concerning federal funding for universities that bar military recruiters – it will likely teeter heavily upon a sole swing vote: that of Justice Anthony Kennedy.
But while Roberts will, no doubt, anchor the conservative wing of the high court, it is unlikely he will amass a record of voting against equal rights for gays that could rival that of Rehnquist.
After being nominated to the Supreme Court by President Richard Nixon, Rehnquist took his seat in January 1972, less than three years after the volatile riots in Greenwich Village inspired a surge in the gay movement’s drive toward equal rights.
Rehnquist was almost certainly voting with the majority on the court when it refused to hear several gay-related cases between 1972 and 1977, but his first discernible vote against gays came in 1977.
In Singer v. U.S. Civil Service Commission, Rehnquist and two other justices dissented from the Supreme Court majority’s decision to vacate a ruling against a gay man, John Singer. Singer had been employed – as irony would have it – by the Equal Employment Opportunity Commission in Seattle, when he was fired for having “flaunted his homosexuality.” He kissed a man outside his office, married his lover (though the marriage was not legally recognized), and dressed in a manner which suggested he was gay. Singer sued, and the Supreme Court majority vacated the lower court rulings against him, noting that the agency had improperly fired him for “immoral conduct,” which was no longer grounds for firing. Rehnquist dissented without comment on that occasion.
The following year, he dissented again, this time from the court’s refusal to take an appeal by the University of Missouri, which sought to deny recognition to a gay student group. But this time, Rehnquist wrote a lengthy explanation for his position that the court should have taken the case and, presumably, allowed the university to deny recognition to the group. Rehnquist said the university was simply refusing recognition to a group “whose activities were found to be likely to incite a violation of a valid state criminal statute.”
Through the rest of his tenure, he voted against the interests of equal rights for gays every chance he got. That included votes against a gay man seeking immigration in Longstaff v. INS in 1984, against a bisexual teacher in Rowland v. Mad River in 1985, and against a gay activist harassed by police in Hill v. Houston in 1987. He voted twice to uphold laws prohibiting sexual activity between consenting same-sex adults – in 1986 with Bowers v. Hardwick and in 2003 with Lawrence v. Texas.
In 1986, President Reagan nominated Rehnquist to the Chief Justice position, but the promotion did not elevate his commitment to all Americans, including gays. He voted to allow the U.S. Olympic Committee to bar Gay Games from being called the Gay Olympics, in the 1987 decision San Francisco Arts & Athletics v. USOC. He voted to allow St. Patrick’s Day parade organizers in Boston to exclude gay contingents, in 1995’s Hurley v. Irish-American Gay Group. And he voted to allow the Boy Scouts of America to ban gays in 2000’s Boy Scouts v. Dale.
Sometimes, as with Hurley, he was joined by every member of the court. Most times, he was joined by only one or two other justices, such as 1996’s Romer v. Evans decision striking down laws based on animus to gay people. In that dissent, and many others, Rehnquist was part of a seemingly unbreakable triumvirate with Justices Antonin Scalia and Clarence Thomas.
In the last gay-related case in which Rehnquist wrote an opinion, he led a 5 to 4 majority decision to allow the Boy Scouts of America to ban gay scouts and leaders. He said a state law in New Jersey which banned discrimination based on sexual orientation violated the Boy Scout organization’s First Amendment right of expressive association. He said that the First Amendment right to the free exercise of religion, speech, press, and “peaceably to assemble” includes an “implicit” right “to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” And in a twist of logic seen more frequently from Scalia, he added that this implied right was “crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas.”
From gay quarters, there was no attempt to gloss over Rehnquist’s record in paying respect to his public service.
“Chief Justice Rehnquist’s record has been consistent – consistently reactionary and consistently hostile to individual freedoms and equal justice, across the board,” said Matt Foreman, executive director of the National Gay and Lesbian Task Force. “His record on lesbian, gay, bisexual and transgender rights has been beyond regrettable; it has been dismal.”