Justice O’Connor, gays and a Tribeca law school

By ARTHUR S. LEONARD

In 1981, when President Ronald Reagan nominated Sandra Day O’Connor, an Arizona state appellate judge, to the Supreme Court, few would have predicted that the first woman to serve on the nation’s highest court, one known for a conservative record both as a jurist and a state lawmaker, would form the centrist linchpin and cast affirmative votes in the two most important gay rights cases to be decided by the court during her tenure —Romer v. Evans, in 1996, and Lawrence v. Texas, in 2003.

O’Connor’s earliest significant vote in a gay rights case, in fact, told a very different story. In 1986, she signed on to the intensely homophobic 5 to 4 majority decision in Bowers v. Hardwick, which upheld Georgia’s felony sodomy law. The majority opinion, authored by Justice Byron White, rejected as “facetious” the claim that the constitutional right of privacy invalidated that statute. Unlike Lewis Powell, who after his retirement in 1987 stated that he regretted his affirmative vote, O’Connor has never publicly discussed her vote.

Nobody can say for sure why or how O’Connor’s views on gay rights shifted, but they certainly did shift. Perhaps the generally negative public reaction to Bowers affected her. It is also likely that in the years after that decision, O’Connor began to encounter more openly gay people in her professional life, including among the law clerks serving the Court.

O’Connor’s appearance at Tribeca’s New York Law School graduation in 1992 may have also played an important part in the justice’s shift. The student speaker at the ceremonies was a proudly open gay man, Steven Peduto, a brilliant student who had been diagnosed with AIDS and battled through numerous medical and financial crises to be able to complete the program with one of his class’ highest grade point averages.

As he entered his last semester, Peduto’s health rapidly deteriorated and he resolutely arrived at the Lincoln Center graduation in a hospital ambulance. Sitting in a wheelchair on stage, Peduto watched as the academic processional, including Justice O’Connor, came into the hall. When Peduto struggled to the podium to deliver his remarks, he was standing almost directly in front of Justice O’Connor. A photographer for Newsday, which ran a large front-page color photo the next morning, captured the stricken look on her face.

During his talk, Peduto mentioned the shock of having lost his health insurance coverage just as he was heading into his first semester final examinations. Could hearing about this predicament under such memorable circumstances have affected O’Connor’s thinking when she considered how to vote on the H & H Music case, in which the employer had responded to one employee’s health situation by imposing a $5,000 lifetime cap on H.I.V.-related claims? The U.S. Court of Appeals in Houston found no violation of federal law, the Supreme Court refused to review the case and O’Connor dissented.

Peduto tragically died just weeks after his law school graduation.

Rumors of family members and friends who might have come out to O’Connor have also circulated. This writer recalls sitting in a meeting of gay civil rights lawyers during which one lesbian attorney from Arizona talked about her longstanding social acquaintance with the Day family, and mentioned having written a “coming out” letter to O’Connor.

One of the most memorable openly gay people O’Connor encountered, just a year after the Bowers case, was the redoubtable Mary C. Dunlap, a leading lesbian feminist lawyer and co-founder of the National Center for Lesbian Rights, who argued before the Supreme Court in the Gay Olympics case. The U.S. Olympic Committee had obtained an injunction against the organizers of the Gay Olympics in San Francisco, banning that group from using the word “Olympics” because it claimed people would be misled into thinking that the U.S.O.C. had sanctioned the event. Dunlap, known for her outspoken presentations, was a master appellate advocate. She dressed for the argument before the court in March 1987 by wearing the formal black tuxedo that male lawyers had traditionally worn for such arguments, which caused consternation among a few of the justices and likely made quite an impression. (Later, Dunlap auctioned off the tuxedo for charity during an appearance as keynote speaker for the annual dinner of New York City’s gay lawyers association.)

The court treated the case as an ordinary copyright and trademark dispute, rejecting Dunlap’s argument that Congress giving the U.S.O.C. a monopoly over the word “olympic” violated the First Amendment. But to the surprise of legal observers, O’Connor dissented from the court’s ruling, finding a plausible free speech claim.

A few years later, she also dissented when the court refused to help resolve the question whether self-insured employers could eliminate coverage for H.I.V.-related claims under their workplace health insurance plans.

By the mid-1990s, it had become clear that Justices O’Connor and Anthony M. Kennedy, Jr., occupied the middle ground in an increasingly conservative Supreme Court, and that for gay rights advocates to win a case before the court, they had to win the votes of either O’Connor or Kennedy, or preferably both. Ultimately, it turned out that Kennedy was the author of the two major gay rights victories, by assignment from Justice John Paul Stevens, who was the senior judge in the majority both times.

O’Connor joined in Kennedy’s Romer opinion without writing separately. The 1996 ruling found that Colorado’s Amendment 2, approved by that state’s voters, deprived gay men and lesbians from the equal protection of the laws, guaranteed by the Constitution, in banning them from enacting any state or local measure that would bar discrimination based on sexual orientation.

O’Connor’s participation in the 6-to-3 majority opinion in Lawrence v. Texas decision seven years later indicates the evolution of her thinking on gay matters. Kennedy wrote for himself and four other members of the Court, holding that the Texas sodomy law violated the 14th Amendment due process clause by imposing an unjustified restriction on individual liberty. Perhaps O’Connor was not willing to recant her vote in Bowers v. Hardwick by joining an opinion that held that Hardwick was “wrong when it was decided,” so she wrote a separate opinion, striking down the Texas law on a different legal theory. But in so doing, she inscribed in the official reports of the Supreme Court — for the first time in the context of an opinion decided on the merits — the suggestion that government policies that discriminate against gay people should be subjected to more than just the minimal “rationality review” that has been favored by the lower courts. Governments had to demonstrate more justification than a merely rational reason for upholding discriminatory public policies against gay people.

In her concurrence, O’Connor suggested that the Texas law violated the 14th Amendment’s equal protection clause because, in her view, moral objections to homosexuality could not justify outlawing conduct for gay people but allowing it for non-gay people. Even though she had accepted moral justifications in Bowers v. Hardwick, she argued that equal protection raised different issues. The Georgia law in Bowers was “evenhanded,” prohibiting sodomy for everybody on moral grounds. But the Texas law was discriminatory on its face, affecting only homosexual sodomy, and O’Connor argued that because it burdened personal association in a very direct way, it should be subjected to a “more searching” kind of rationality review.

Because she was speaking only for herself in Lawrence v. Texas, not for the court majority, O’Connor’s equal protection theory establishes no precedent. But in light of her opinion in that case, her failure to dissent when the Court refused to review the Florida adoption case involving gay parents earlier this year was puzzling. Perhaps she concluded that the votes to reverse the ruling were not there on the court or perhaps she found persuasive the state’s “role model” argument for justifying excluding gays from being adoptive parents. However, a straightforward application of her “more searching” rationality approach from Lawrence would certainly cause the Florida law to fall, in light of the state’s inconsistent approach, allowing gay people to be foster parents in semi-permanent placements.

In 2000, O’Connor joined Chief Justice William Rehnquist’s opinion for the Court, reversing the New Jersey Supreme Court and holding that the Boy Scouts of America could defy New Jersey’s Law Against Discrimination by disqualifying James Dale, a gay man, from being an assistant scoutmaster. And she joined with the unanimous court in reversing the Massachusetts Supreme Judicial Court and ruling that the organizers of Boston’s St. Patrick’s Day parade could ban a gay Irish group from marching in the parade under its own banner.

While O’Connor became an important vote for gay rights during her last decade on the court, she was not consistently so. Her retirement will certainly affect the outcome of future gay rights cases.

Arthur S. Leonard is a professor at New York Law School and a contributing writer to Gay City News, a sister publication of Downtown Express.