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Book Traces Justices' Stance Toward Gays
Published on Monday, June 4, 2001 in the Washington Post
Book Traces Justices' Stance Toward Gays
by Charles Lane
 
Chief Justice Earl Warren once signed an opinion in which a six-member majority of the Supreme Court referred to people "afflicted with homosexuality." His successor, Warren E. Burger, once wrote of gays as "sex deviates." The current chief justice, William H. Rehnquist, likened a university's refusal to recognize a gay student group to measures necessary to prevent the spread of measles.

These are just some of the jarring facts brought to the surface in an intriguing new book about the Supreme Court's responses to the gay rights movement, "Courting Justice: Gay Men and Lesbians v. The Supreme Court," by veteran Washington journalists Joyce Murdoch and Deb Price (both of whom formerly worked for The Washington Post).

In Murdoch's and Price's view, the court's record on gay issues has been mixed at best. As far back as 1958, the court upheld a gay magazine's right to publish, a decision that paved the way for the gay press to develop into one of the pillars of an emerging gay community. In 1996, it resoundingly struck down a Colorado law limiting gay rights in that state.

But cases such as Bowers v. Hardwick, the 1986 decision upholding state sodomy laws, or Boy Scouts of America v. Dale, last year's decision authorizing the Scouts to exclude gay scoutmasters, have shown that the court is a long way from reading a full endorsement of gay rights into the Constitution.

Most often, Murdoch and Price argue, the court has ducked the toughest issues raised by gay litigants, nervously refusing to decide on questions ranging from job discrimination against gay teachers to gays in the military.

Still, the authors note that the court no longer openly discusses homosexuality in the pejorative terms it comfortably employed in the not-too-distant past. When he wrote the majority opinion in Dale, for example, Rehnquist referred to the gay scoutmaster as "an exemplary scout."

"The court's language is changing dramatically in the last 10 to 15 years," Murdoch noted in an interview. Respectful terms "have become the norm."

Justices over the years have been influenced not only by the general zeitgeist but also by their personal contact -- or lack thereof -- with gay friends and family members. Justice William O. Douglas took a sympathetic view of gay rights in part because he befriended a lesbian couple who owned a ranch near his vacation home in Washington state, the authors said. Justice Ruth Bader Ginsburg, invited to a "commitment ceremony" by a lesbian former law clerk and her partner, sent a gift in honor of the occasion.

Justice Lewis F. Powell Jr., however, once remarked in chambers that he had never personally met a homosexual, even though one of his law clerks at the time was gay -- as several others had been in previous terms, according to the book.

In Bowers, the court upheld, by a 5-4 vote, Georgia's right to prosecute a gay man for a private sex act. Powell's vote tipped the balance against the man, a fact that Powell would agonize over for years afterward, according to Murdoch and Price.

The book's most adventuresome claim may be that Justice Frank Murphy, an appointee of President Franklin D. Roosevelt who served on the court from 1940 to 1949 after serving as mayor of Detroit and governor of Michigan, was probably a gay man. Murphy died in 1949 at the age of 59, having dated but never married and having lived most of his adult life with another man, Edward G. Kemp, who has since died.

The authors say they encountered a letter in Murphy's papers from another man who appears to refer to an affair he had with Murphy in 1933.

Murphy's biographer, Sidney Fine, a professor emeritus of history at the University of Michigan, said he has examined the same documents and considers Murdoch's and Price's reading "a possibility, but the evidence is not conclusive."

Price says that she and Murdoch were reluctant about appearing to "out" anyone who preferred to keep his or her sexuality private -- even a long-dead justice -- but ultimately decided that such a discussion of Murphy was comparable to historical speculation about other prominent Americans such as Walt Whitman and Emily Dickinson.

"We live in a society that de-outs people, that heterosexualizes gay lives," Price said in an interview. "That's why gay people have no history. If there was a gay Supreme Court justice, it's important for us all to know."

© 2001 The Washington Post Company

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