Justice Stevens: a Republican who grew liberal with the times

Some court observers credit U.S. Supreme Court Justice John Paul Stevens with having forged a majority of the court to overturn laws banning private sexual relations between persons of the same sex — the most beneficial gay-related decision ever rendered by the Supreme Court.

Stevens, who turns 90 on April 20, announced April 9 that he would retire from the high court at the end of June.

In a one-paragraph letter to President Obama, Stevens said he had concluded that “it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court’s next term.”

The announcement triggered a storm of media attention that is not likely to subside anytime soon as President Obama prepares to nominate his second candidate for the nation’s highest court. The nomination will almost certainly trigger another storm — this one on Capitol Hill, where Republicans have dug in to oppose nearly everything the Obama administration and Democratic majority in Congress is trying to pass.

But the news also inspired an outpouring of praise for Stevens as one of the Supreme Court’s oldest and longest-serving justices.

Gay rights groups joined in the praise. The Human Rights Campaign called Stevens “fair-minded” and Lambda Legal Defense & Education Fund hailed him as a “true visionary” to whom the LGBT community “owes much.”

“He has been a strong, clear, and consistent voice for the rights of gay people and other minorities, the disabled, reproductive freedom, and free speech,” said Jon Davidson, legal director at Lambda Legal.

Opposing sodomy laws

It was 2003 when the greatest chunk of LGBT Americans’ debt to Stevens was sealed.

Then-Chief Justice William Rehnquist and two other justices wanted to uphold the Texas sodomy law in Lawrence v. Texas, according to court historian Jeffrey Toobin. But Stevens, the ranking justice on the other side of the issue, was against it.

“Stevens wisely assigned [Justice Anthony] Kennedy to write the opinion” for overturning the law, wrote Toobin, in his 2007 book “The Nine.”

In fact, Toobin suggests, Stevens studiously chose Kennedy for the assignment as a way of shoring up Kennedy’s vote for those who wanted to overturn the law. And in writing the historic Lawrence v. Texas opinion, Kennedy “drew heavily on Steven’s seventeen-year-old opinion” in Bowers v. Hardwick.

The case pitted Georgia Attorney General Michael Bowers against Michael Hardwick, a gay Atlanta man who was arrested for sodomy in his own home when police entered to serve a warrant for a minor, unrelated matter.

The Supreme Court upheld the Georgia law, which banned all anal and oral sex but was primarily used against gay people.

Stevens vehemently opposed the decision.

He joined the primary dissent, written by then-Justice Harry Blackmun, and then penned his own dissent, joined by Justices William Brennan and Thurgood Marshall.

In his fiery dissent, Stevens harshly criticized the majority for ignoring the plain language of the Georgia law prohibiting sodomy — that it prohibited oral or anal sex for any couple, gay or straight.

The sodomy law, said Stevens, was “an unconstitutional intrusion into [Michael Hardwick’s] privacy and his right of intimate association does not depend in any way on his sexual orientation.”

If the right to privacy means anything, wrote Stevens, “it means that, before Georgia can prosecute its citizens for making choices about the most intimate aspects of their lives, it must do more than assert that the choice they have made is an ‘abominable crime not fit to be named among Christians.’”

The Hardwick decision had not only upheld laws prohibiting private sexual relations between people of the same gender, it had been used in a wide variety of arenas to justify further discrimination based on sexual orientation.

Other gay cases

Stevens’ position in Hardwick was not a big surprise: In 1976, one year after he was appointed to the court by Republican President Gerald Ford, he, Brennan and Marshall said they thought the court should hear an appeal challenging Virginia’s law against same-sex sodomy; but a majority affirmed the law without hearing arguments.

In June 1987, Stevens was with the majority in Houston v. Ray Hill, which overturned a city ordinance in Houston that was used to stifle protests by a gay activist, Ray Hill, against police harassment of gays.

But 10 days later, Stevens joined the majority in ruling that the U.S. Olympic Committee did not violate the First Amendment rights of Gay Games organizers by preventing them from calling their gay sports event the “Gay Olympics.”

In 1988, he voted with a majority that said the Central Intelligence Agency’s firing of an employee because he was gay was subject to judicial review, and he voted with a unanimous court ruling that upheld the procedure used to fire an employee of the National Security Agency who acknowledged having homosexual relations with citizens of other countries.

Centrist to liberal

For most of his tenure on the court, Stevens was a relative moderate who leaned liberal. With more consistently liberal justices — Brennan, Marshall, and Blackmun — on the court, Stevens seemed centrist.

By 1991, after Brennan and Marshall retired, Stevens inevitably began to appear more liberal, relative to the increasingly conservative court. But his vote also became more consistently liberal, and he began to take a leadership role.

He voted with the majority in Romer v. Evans in 1996, agreeing that Colorado’s initiative banning any legal protection based on sexual orientation was unconstitutional.

And though, a year earlier, he had agreed with a unanimous court, in Hurley v. Irish-American Gay Group, that the organizers of a St. Patrick’s Day parade in Boston had a First Amendment right to ban a contingent of gays, he wrote the dissent in 2000, in Boy Scouts v. Dale, opposing the majority’s decision that said the Boy Scouts of America had a First Amendment right to discriminate against gay scout leaders.

Hurley had only a “superficial similarity” to Boy Scouts, said Stevens. Whereas a gay contingent could be said to convey a message when participating in a parade, the same could not be said of a single gay scout leader joining the Boy Scouts.

“Being openly gay,” said Stevens, “communicates a message — for example, that openness about one’s sexual orientation is more virtuous than concealment; that a homosexual person can be a capable and virtuous person who should be judged like anyone else; and that homosexuality is not immoral — but it certainly does not follow that they necessarily send a message on behalf of the organizations that sponsor the activities in which they excel,” Stevens wrote.

The potential impact of the retirement will be measured once President Obama nominates a replacement; the nominee must be confirmed by the Senate.


Photo courtesy Supreme Court