Deb Price | Justice Stevens: A Bold Ally

In 2000, Justice John Paul Stevens powerfully dissented from the Supreme Court’s 5-to-4 decision allowing the Boy Scouts of America to ban an exceptional young man — an Eagle Scout — from being a scout leader simply because he was openly gay.

Blasting the majority’s reasoning as “mind-boggling” and “far-fetched,” Stevens warned that the court was in effect creating a “constitutional shield” for anti-gay policies and burdening all openly gay Americans with a “symbol of inferiority.”

In a stirring finale, the then-80-year-old Stevens wrote, “If we would guide by the light of reason, we must let our minds be bold.”

Now retiring, Stevens, who turns 90 on April 20, will quietly walk off the national stage as little known to most Americans as the day he was appointed by President Ford in 1975. Tourists once shooed the justice out of the way as they photographed his court’s handsome facade.

But gay people and our many millions of allies should pause to salute Stevens for the many bold, intelligent moves he made to ensure that the basic constitutional rights of gay Americans have begun to be recognized and protected.

As my co-author Joyce Murdoch and I pieced together for “Courting Justice: Gay Men and Lesbians v. the Supreme Court,” Stevens continually prodded the court to treat us as equal citizens, using his votes in the court’s private conferences, the power to assign the writing of key gay-rights rulings and his own public statements to advance the cause of fairness:

  • In 1986, he dissented from the court’s Bowers v. Hardwick ruling, in which a shaky but devastating five-justice majority upheld Georgia’s sodomy law: “The principle that ‘all men are created equal’ … must surely mean that every free citizen has the same interest in ‘liberty.’ … (T)he homosexual and the heterosexual have the same interest in deciding how he will live his own life, and, more narrowly, how he will conduct himself in his personal and voluntary associations with his companions.”
  • Rather than grabbing the spotlight by assigning himself to write the gay-rights breakthrough decisions in Romer v. Evans in 1996 and Lawrence v. Texas in 2003, Stevens wisely tapped Justice Anthony Kennedy, a strategic move likely intended to preserve fragile majorities by keeping Kennedy and Justice Sandra O’Connor onboard. Those legal blockbusters recognized that gay Americans do indeed have constitutionally protected privacy and equal protection rights. … What might have happened if those cases gone the other way? It’s horrifying to imagine. Without those legal landmarks, gay Americans would still be smeared with a taint of criminality, and the anti-gay industry would have shifted into high gear to write Colorado-style amendments into other state constitutions so that state and local officials would be powerless to adopt any sort of gay-rights laws.
  • In 1998, when the Supreme Court opted not to review a lower-court ruling upholding an anti-gay Cincinnati ordinance, Stevens released an unusual statement that essentially said not to misread the step as undercutting Romer, reminding everyone that turning away a case “is not a ruling on the merits.”

Stevens’ retirement is like saying goodbye to a beloved grandfather who for decades did his best to protect you without drawing particular attention to himself. Left as basic gay allies on the court are Stephen Breyer and Ruth Bader Ginsburg. Steadfastly gay-friendly David Souter was succeeded by Sonia Sotomayor, who, though still untested, has sparked optimism among gay rights attorneys. Despite writing the Romer and Lawrence decisions, Kennedy remains a question mark.

Heeding his own admonition to boldly go where the light of reason pointed, Stevens illuminated the nation’s path toward full equality for those of us who’re gay. If our next justice follows in Stevens’ footsteps, the rights of all Americans will be in good hands.

Deb Price of The Detroit News writes the first nationally syndicated column on gay issues.

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