O'Connor leaves mixed
legacy on gay rights
By Deb Price,
detnews.com from the Web, July 12, 2005
Seething with anti-gay hostility,
Sen. Jeremiah Denton, an Alabama Republican, demanded in 1981 to know whether
Supreme Court nominee Sandra Day O'Connor saw constitutional limits on laws
restricting "the rights of homosexuals because of their sexual deviance."
O'Connor diplomatically refused the bait, answering matter-of-factly, "The state
of the law concerning homosexuality is, in one word, unsettled."
Now, 24 years later, O'Connor is retiring from a court that with her help
settled a fundamental principle with a pair of blockbuster 6-to-3 decisions:
The U.S. Constitution does indeed protect the legal rights of gay Americans.
She provided the psychologically critical sixth vote in both 1996 (Romer v.
Evans) and 2003 (Lawrence v. Texas). That gave those landmark
rulings -- striking down first an anti-gay Colorado amendment, then Texas'
sodomy law -- a force that 5-to-4 outcomes lack. Yet to call O'Connor a
friend of gay America would be an inappropriate stretch. In fact, she
voted on the wrong side in the infamous 1986 Bowers v. Hardwick decision.
As a result, sodomy laws, which stigmatized all gay people as criminals, stayed
on the books in some states for another 17 years.
By interviewing several of her law clerks for our 2001 book, "Courting Justice:
Gay Men and Lesbians v. the Supreme Court," my spouse Joyce Murdoch and I gained
some understanding of the difficult-to-pigeonhole O'Connor.
She was torn between her traditional views -- always writing of "homosexuals,"
not saying "gay Americans" as some colleagues did -- and her identification with
the underdog.
She never forgot that because she was female, law firms had slammed doors in her
face, even though she was a top graduate of Stanford Law School..
O'Connor's vote in any gay case, her clerks told us, hinged on whether she
viewed the gay litigant as an activist trying to advance a cause or as a victim
of mistreatment. Yet, again and again, she allowed injustices -- voting in
1984, for example, to uphold a loitering law used to target gay men, backing in
1988 the CIA's firing of a technician for being gay, and siding with the FBI in
1992 after it lured a gay man into ordering illegal porn.
O'Connor could show compassion, though: She handwrote a long condolence
letter to a gay court employee whose partner died of leukemia in 1987.
And she was appalled in 1995 by Colorado's Amendment 2, which wrote government a
blank check to discriminate against gays. During oral arguments, she noted
with exaspiration "the literal language would indicate that, for example, a
public library could refuse to allow books to be borrowed by homosexuals and
there would be no relief from that, apparently."
Nowhere was the tension between O'Connor's not wanting to help gays advance and
not wanting us to be hurt on display more than in her 2003 Lawrence vote to
strike down Texas' sodomy law, which solely applied to gay couples. Unlike
other justices in the majority, she refused to also overturn Bowers and sodomy
laws that applied to everyone.
Even as she declared Texas' sex laws had to treat all couples alike, she held a
door wide open to other anti-gay discrimination. "Texas cannot assert any
legitimate state interest here, such as national security or preserving the
traditional institution of marriage.
"Unlike the moral disapproval of same-sex relations -- the asserted state
interest in this case -- other reasons exist to promote the institution of
marriage beyond mere moral disapproval of an excluded group," O'Connor wrote.
O'Connor seemed unsettled by the reality that two of her highest-profile votes
helped gay Americans advance toward full legal equality. She leaves a
mixed legacy.
You can reach Deb Price at (202) 906-8205 or
dprice@detnews.com.
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