A Supreme Injustice Remembered. It's said we
should remember those who have died with a certain amount of
charity. But that doesn't mean excusing the wrong that they did,
especially when their actions have caused pain and suffering. And
so let us note that death came this week for Byron R. "Whizzer"
White, the former U.S. Supreme Court justice who died Monday at the
age of 84. Most of the obits remembered him as the former
award-wining college football hero who enjoyed a colorful career on
the bench. Lesbian and gay Americans, however, will recall him as
the author of the horrific 1986
Bowers vs. Hardwick ruling that upheld state laws criminalizing
homosexual sex between consenting adults. On behalf of the High
Court's 5-to-4 majority, White wrote that it was appropriate to
find Michael Hardwick guilty of having consensual adult homosexual
relations in the privacy of his own bedroom because:
"To claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious. -- .The fact that homosexual conduct occurs in the privacy of the home does not affect the result. -- [The defendant] insists that majority sentiments about the morality of homosexuality should be declared inadequate. We do not agree, and are unpersuaded that the sodomy laws of some 25 States should be invalidated on this basis."
It's worth noting that White was not appointed by a right-wing Republican, but by liberal Democrat John F. Kennedy, who praised his nominee as "the ideal New Frontier judge."
One can only imagine what the impact might have been if these so-called "sodomy laws" had been thrown out. Certainly, the fact that several states still have these statutes on their books to this day has aided those who oppose same-sex marriage and support the military's gay ban. The laws also work to deny lesbian or gay parents custody of their children -- or even, in some cases, visitation rights.
Fortunately, a 1996 Supreme Court decision by another Kennedy
(unrelated to John and his clan) helped lay the foundation to
eventually overturn "Hardwick." In Romer v.
Evans, Justice Anthony Kennedy wrote the majority opinion that
found Colorado's constitutional amendment prohibiting gays and
lesbians from ever being covered by anti-discrimination laws was
unconstitutional. He declared:
"The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies. -- The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence" Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance". We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause""
Did I mention that Justice Kennedy was a 1987 Reagan appointee?
A question: Just how many hundreds of thousands of dollars will the Human Rights Campaign raise for liberal and left-leaning Democrats, using the specter of the vast danger posed by future Republican Supreme Court nominees (like Anthony Kennedy, or Bush the First appointee David Souter)?
That's not to say I'd support any nominee that Bush the Second might put forward (and I'm very grateful that Robert Bork was Borked, back in Reagan's day). However, it is to argue that nominees should be judged fairly, on their own merits, and that the scare campaign underway over the very idea of a GOP Supreme Court nominee is mostly partisan hyperbole, like so much in Washington these days.