Will acceptance of gays by high court influence rulings?

Reuters News
Posted: Sep 09, 2012 9:17 AM
Will acceptance of gays by high court influence rulings?

By Joan Biskupic

WASHINGTON (Reuters) - A tall, hulking man in his late 70s, William Rehnquist, then chief justice of the United States, crawled down on all fours to say hello to the two little girls who had scurried under the table when he approached at a luncheon.

Sally Rider and her partner Betsy had tried to teach their two preschool-age daughters how to shake hands with Rehnquist. At the time, Rider was his top aide.

Recalling the episode nearly a decade later, Rider, 55, said the late conservative chief justice was as understanding of the girls' shyness as he was accepting of Rider's lesbian relationship and family. He never said a word.

Such acceptance didn't change his view of the law. Around that same time, the U.S. Supreme Court struck down a Texas statute criminalizing private homosexual relations. And Rehnquist signed on to a stinging dissent that referred to Americans "protecting themselves and their families from a lifestyle that they believe to be immoral and destructive."

This year, for the first time since that 2003 ruling, the nine Supreme Court justices - four of whom were not on the court then - face major gay-rights disputes. The court will decide, possibly as early as the end of September, whether to review a U.S. law that bars marriage benefits, such as Social Security survivor payments, for same-sex married couples. Separately the court will decide whether to take up California's ban on same-sex marriage, approved by voters in 2008 and known as Proposition 8.

The cases come before a court that has shown increasing acceptance of the gay men and lesbians employed there. Inside the marble walls - as at many U.S. workplaces - there has been an evolution from secrecy about sexual orientation to awkward and anxious comings-out, to an atmosphere in which sexual orientation is not an issue.

In an institution where social rituals hew to centuries-old tradition, gay men and lesbians openly bring their same-sex partners to the Christmas party and the court sing-a-long.

But as the Rehnquist incident showed, it can be difficult to draw conclusions about how a justice's personal involvement with gay people might influence rulings. Recent studies suggest that people who have close connections to gay individuals are more likely to support gay rights. But Supreme Court justices are supposed to uphold the Constitution and follow legal precedent, not personal preferences.

Individual justices clearly read the law differently. The more liberal members, for instance, say consensual gay relations are covered by the Constitution's implicit right to privacy. The more conservative justices find no such privacy right in the Constitution. Personal experience could exert a subtle effect, though, on the thinking of justices in the middle of the court's ideological spectrum, such as Justice Anthony Kennedy - who has previously taken the lead in gay-rights cases.

"It may not change (a justice's) views at all on what the Constitution requires," said Rives Kistler, who was a law clerk to Supreme Court Justice Lewis Powell in the 1982-1983 term and is now an Oregon Supreme Court justice. But Kistler, who came out after his clerkship and is now 63, added, "Hopefully, it allows judges to view the issue more objectively, without apprehension or being driven by a fear of the unknown."


Interviews with more than a dozen people who are gay and have worked at the Supreme Court and a dozen other people who have studied the institution reveal a culture of acceptance that cuts across ideological lines. Not one suggested that it is difficult to be openly gay at the court now. And unlike in the 1990s, when many employees first came out, no one seems to make a big deal of it.

"One of the gay clerks that I had was a woman," said Justice Ruth Bader Ginsburg, the senior liberal on the court, recalling her early years on the bench in the 1990s. "She wanted me to know from Day One that her partner was a female. She was almost aggressive. Now gay clerks don't do that anymore. Now this is not an issue."

Justices generally do not address pending cases. Ginsburg, a former women's rights advocate, spoke in the context of a trend she has observed in other areas of discrimination: that working alongside people who have traditionally faced bias - having women at the table, for example - yields a deeper understanding of their dilemmas.

"I've seen the increase in understanding," she said of matters related to sexual orientation. "We have not reached nirvana yet. But there has certainly been enormous change."

Asked whether she had heard other justices refer to experiences with gay people, Ginsburg said, "It's not an issue that we discuss."

Law clerks, who serve one-year stints, take an oath of confidentiality. It could not be determined how many gay law clerks this term are open about their sexual orientation.

Predictions for new cases are difficult, particularly for any momentous test of gay marriage. While the court has been open to protecting gay people from discrimination, it would be a leap for the court to require states to permit same-sex marriage, given past cases and that the vast majority of states do not recognize such unions.

Chief Justice John Roberts, who succeeded Rehnquist in 2005, has not ruled on a gay-rights dispute. He has had gay employees, including Rider, the former Rehnquist aide, who worked for him for a year after Rehnquist's death in 2005. Roberts declined a request for an interview.

Justice Kennedy, often the swing vote on this court, wrote the opinion in the 2003 gay-rights case, Lawrence v. Texas, vigorously endorsing privacy rights for gay men and lesbians and their intimate relations. Kennedy also wrote the court's opinion in a groundbreaking 1996 case that helped protect gay men and lesbians from discrimination. Like many of the other justices, Kennedy had a warm relationship with Rider and knew openly gay law clerks, according to people familiar with these relationships. Kennedy declined a request for an interview.

The hard attitudes of the justices in opposition to those rulings do not appear to have diminished the comfort level for openly gay employees at the court. Justice Antonin Scalia, joined by Rehnquist and Justice Clarence Thomas, has authored some of the most caustic dissents against gay legal rights. In his dissent in Lawrence v Texas, Scalia said the majority had "signed on to the so-called homosexual agenda ... directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct."

Asked last month in an interview about his dissents in past gay-rights cases, voiced from the bench as well as in his written opinions, Scalia said he was merely reading the Constitution, which he says does not cover a right to same-sex relations: "Where does it come from?" he said. "This is a trendy view of the current society elite. It's not right to impose it on everybody else. It's a democratic question. If you want to permit homosexual sodomy, then pass a law."

Two former law clerks to Scalia said in interviews that they are now living lives as gay men although they were not out at the time they worked for Scalia.


In the 1980s, when the court's majority was unreceptive to gay rights, gay employees were inclined to secrecy.

Chai Feldblum, a lesbian, was just weeks from taking a prestigious clerkship with Justice Harry Blackmun when the court in 1986 upheld a Georgia law that criminalized sodomy. Blackmun was among the four dissenters - saying the Constitution protects the sexual intimacy of gay people. But Feldblum felt the justice was personally uncomfortable with the notion of homosexuality. She described him expressing surprise at the number of letters he received after the decision from people identifying themselves as gay men and lesbians.

Even though she had been open about her sexuality in law school and at her subsequent clerkship for a U.S. appeals court judge, Feldblum, now 53 and a commissioner at the Equal Employment Opportunity Commission, said she "basically went back into the closet with the justice."

Not until four years after her clerkship ended did Feldblum tell Blackmun she was a lesbian and was romantically involved with a woman. "We love you anyway," she recalled Blackmun, then aged 82, saying at first. After a pause, he dropped the qualification and said, "We love you."


The pattern of openness for gay employees at the Supreme Court began in the 1990s, coinciding with larger social, cultural and legal shifts. In 1996, the court issued its first major decision affirming gay rights, Romer v. Evans. That ruling, with Justice Kennedy writing for the six-justice majority, struck down a Colorado law that prohibited cities such as Aspen and Boulder from banning discrimination based on sexual orientation - for example, in housing. Kennedy said the Colorado law was "born of animosity toward" gay people and lacked any link to a legitimate government purpose.

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While some gay clerks began feeling confident enough to be out, as Ginsburg suggested, it wasn't stress-free or spontaneous.

"Today it seems so easy and obvious that you'd be out," said David Codell, a clerk for Ginsburg in the 1996-97 term who, as a lawyer in Los Angeles, has provided pro bono counsel to Equality California, advocating marriage rights for same-sex couples. "It's hard for people to understand that even in the '90s it was a dangerous thing to come out professionally."

President Bill Clinton in 1993 signed the "don't ask, don't tell" policy, forbidding openly gay people from serving in the U.S. military. Three years later, Congress passed and Clinton signed the Defense of Marriage Act, defining marriage as only between heterosexual couples.

That law, passed in 1996 and now being challenged at the high court, denies marriage benefits for couples in the seven states and the District of Columbia that allow same-sex marriage. The Boston-based U.S. Court of Appeals for the First Circuit ruled that the law violates the Constitution's guarantee of equality.

In the 1990s, Codell, now 44, said sexual orientation was "not an issue" at the court, but added that in that era lawyers who chose to come out professionally "risked having doors closed professionally."

President Barack Obama's administration enhanced such professional opportunities, as it also adopted legal positions that favored gay men and lesbians. It declined to defend DOMA, and the Republican-led House of Representatives has brought an appeal now before the justices. Obama last year signed legislation repealing "don't ask, don't tell," now allowing gays to serve openly in the military.

Only with Obama's administration have gay judicial nominees been publicly touted. The groundbreakers, Paul Oetken and Alison Nathan, were former Supreme Court law clerks. Obama named both in 2011 to federal courts in New York. Oetken was a law clerk to Justice Blackmun from 1993 to 1994, and Nathan to Justice John Paul Stevens from 2001 to 2002.

When Rider, a former federal prosecutor who had graduated from the University of Arizona law school, applied for the job with Rehnquist in 2000, she did not mention her sexual orientation. But she believed he knew, possibly having been told by someone who had recommended her.

"It never came up, but it was obvious," Rider said, recalling that she never hid her sexual orientation.

Rehnquist died in 2005, and after a year working for his successor, Roberts, Rider moved with her family to Tucson. At the University of Arizona, she is a law professor and runs the Rehnquist Center on the Constitutional Structures of Government.

Rider said that when she worked for Rehnquist and held the post regarded as the court's chief of staff, she and her family "were always treated with respect." She acknowledged that she was initially wary of the institution known to be stuffy and old-fashioned.

But having thought about it, she said she decided: "That's just the place you want to be out.... I don't have two heads. I have a family."

(Reporting by Joan Biskupic; Editing by Amy Stevens, Howard Goller and Christopher Wilson)