She was an important justice, but not a great one. Sandra Day O'Connor was important because, as we have been told ad nauseam, hers was the Court's "swing" vote, negotiating between the liberal and conservative blocs. She was not great because no enduring constitutional principles she announced will survive her tenure. On gay legal issues, however, she was quite good if mostly passive.
Justice O'Connor mattered in many cases that mattered because, for her, every case was a new universe to be judged on the basis of particular facts whose importance could only be known by consulting Justice O'Connor. Her decision-making was almost entirely free of great principles and guiding legal theories, which may seem admirably undogmatic but was actually maddening. She announced that the government could not place an "undue burden" on abortion, but nobody knew what this meant until O'Connor told us in a given case. She proclaimed the government could not "endorse" religion but, again, what this meant depended just on what O'Connor said.
She decided cases with the eye of a legislator, which is what she once was. So consider, for example, that O'Connor once decided that airports could ban people who solicit donations for political and charitable causes - on the theory that this activity might disrupt pedestrian traffic when travelers stop to hear pitches for donations. But airports in her view could not ban people who distribute (or even sell!) literature for political and charitable causes - on the theory that this activity would not disrupt the flow of pedestrian traffic in the airport terminal because interested travelers would be more likely to take a pamphlet and move on. Her view became constitutional law. It was this kind of policy-oriented hair-splitting that made her "important," but hardly great.
For gay people, she was pretty good. She confronted gay-rights claims in five cases during her 24-year tenure, and got four of them right. Her first encounter with a gay-rights claim was not promising. In Bowers v. Hardwick, decided in 1986, she joined a majority of the Court that upheld sodomy laws. Notably, she did not join an especially nasty anti-gay concurring opinion by Chief Justice Warren Burger, who suggested that homosexual sodomy was worse than rape.
In 1995, in Hurley v. GLIB, she joined a unanimous opinion upholding the right of the St. Patrick's Day parade in Boston to exclude a gay contingent. Considered a loss by some gay-right advocates at the time, the decision was actually a victory in that it upheld the right of private speakers to control their own message. The right that allows the Hibernians to exclude gays from their parade is the same right that allows gays to exclude Fred Phelps from the annual gay pride parade.
In 1996, in Romer v. Evans, O'Connor joined the majority in striking down a Colorado state constitutional amendment banning all civil rights protections for gay people. It was the first out-and-out victory for gay-rights litigants in the Court's history. It put a stop to a movement that threatened the political progress made by gay advocates in cities across the country. It also declared that "animus" against gay people is not a legitimate basis for legislation under the U.S. Constitution.
In 2000, in Boy Scouts v. Dale, O'Connor once again joined the majority in declaring that the Boy Scouts of America had the right to exclude an openly gay scoutmaster. Also considered by many to be a defeat for gay rights, the decision was really a win. The opinion affirmed a robust freedom of association, the same freedom that had shielded fledgling gay groups from government persecution in the 1960s through the 1980s.
In 2003, in Lawrence v. Texas, Justice O'Connor joined the majority in striking down a law banning homosexual anal and oral sex. Notably, she did not join the majority in striking down all sodomy laws as a violation of a constitutional right to privacy. Instead, O'Connor focused on the fact that the Texas law targeted only gay couples. While O'Connor's opinion would theoretically have allowed a state to ban both heterosexual and homosexual sodomy, she carefully noted that such an "evenhanded" law might be unconstitutional if unequally enforced (as such laws always have been).
Aside from these particular cases, Justice O'Connor's general preference for state over federal power must also be seen as a boon to gay-rights causes. In a series of cases, O'Connor voted to limit federal power and to protect the historic role of the states in determining important matters of public policy. While she was hardly consistent about it, she was firmly in the camp favoring such federalism.
Federalism is now the principle means by which gay-rights causes are advancing in this country. According to the Center for Policy Alternatives (CPA), headed by former Human Rights Campaign Executive Director Tim McFeeley, the states are now leading the way in granting protections to gay individuals and families. A new report by the CPA documents more than two dozen pro-gay state laws adopted since 2003 alone. These include not only civil rights laws protecting gays from discrimination, but also laws recognizing and supporting gay families. These gains have been made even as prospects at the federal level have considerably darkened.
Justice O'Connor did not personally push for these advances in the state legislatures, of course. But her general approach has protected a balance of state and federal power that makes them possible.