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U.S. Supreme Court Justice John Paul Stevens, who turns 90 later this month and has been on the high court since 1975, informed the White House on Friday, April 9, of his intention to retire this summer, a move that gives President Barack Obama his second opportunity to name a nominee for the high court.
The justice, who served on the U.S. Seventh Circuit Court of Appeals for five years before being nominated for the high court by President Gerald Ford, was confirmed for the position by the Senate on a vote of 98-0.
Nominated by a Republican, Stevens has been a stalwart defender of LGBT equality, opposing the court’s 1986 decision upholding Georgia’s sodomy law. At the time, he wrote, “[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.”
Obama was informed of the decision by White House Counsel Bob Bauer on Friday morning and spoke about the justice’s decision later that afternoon. Describing the justice as “brilliant, non-ideological, pragmatic and committed above all to justice, integrity and the rule of law,” Obama said he would seek in his replacement someone who shared those attributes of the justice, as well as his “keen understanding of how the law affects the daily lives of the American people.”
Among the potential nominees for the position — primarily gleaned from those considered when now-Justice Sonia Sotomayor was being considered for the vacancy on the Supreme Court when then-Justice David Souter announced his retirement — are at least two openly lesbian law professors: Stanford Law School’s Kathleen Sullivan and Pam Karlan.
Those being most heavily discussed for this vacancy, however, are Obama’s top advocate before the Supreme Court, Solicitor General Elena Kagan, and federal appellate judges Merrick Garland and Diane Wood.
In a paragraph that would garner political opposition in some quarters even today, Stevens wrote in his 1986 dissent to the court’s decision in Bowers v. Hardwick, “From the standpoint of the individual, the 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. State intrusion into the private conduct of either is equally burdensome.”
Later, the court considered whether New Jersey’s law against discrimination, which would have prevented the Boy Scouts from kicking out openly gay assistant scoutmaster James Dale, was constitutional. The court decided in 2000 that, as applied to a group like the scouts with a scoutmaster like Dale, it was not. Stevens again found himself disagreeing with the majority of his colleagues.
Referring to parts of the Scout Oath and Scout Law, he wrote in dissent in Boy Scouts of America v. Dale, “It is plain as the light of day that neither one of these principles – ‘morally straight’ and ‘clean’ – says the slightest thing about homosexuality.”
Stating that the majority presented an “astounding view of the law,” Stevens detailed how the majority was “deferring entirely” to the claims made in the case by the Boy Scouts. After examining the scouts’ longstanding position on homosexuality – or the lack thereof – he concluded it was “entirely clear that BSA in fact expresses no clear, unequivocal message burdened by New Jersey’s law.” As such, he found that the law should have been enforced and that Dale should have been allowed to continue as an assistant scoutmaster.
He went further, however, taking space in his opinion to write about changing views on homosexuality. Referring back to the court’s opinion in Bowers v. Hardwick and noting longstanding “[u]nfavorable opinions about homosexuals,” Stevens wrote, “That such prejudices are still prevalent and that they have caused serious and tangible harm to countless members of the class New Jersey seeks to protect are established matters of fact that neither the Boy Scouts nor the Court disputes. That harm can only be aggravated by” the court’s decision.
“As Justice Brandeis so wisely advised,” Stevens concluded, “‘we must be ever on our guard, lest we erect our prejudices into legal principles.’ If we would guide by the light of reason, we must let our minds be bold.”
It was only a few years later that Stevens, though he didn’t write a word in the case, saw some of that boldness he had expressed years earlier in Bowers v. Hardwick become the law of the land.
When the Supreme Court heard the arguments in Lawrence v. Texas challenging the constitutionality of Texas’s Homosexual Conduct Law in March 2003, the 1986 case was on people’s minds, as the Supreme Court rarely reverses earlier opinions – let alone one from so recent in the past.
But when Justice Anthony Kennedy’s opinion for the court was handed down on June 26, 2003, it was clear that the opinion on the majority of the court’s mind in 2003 was that dissent written by Stevens 17 years earlier.
Quoting extensively from Stevens’s opinion, Kennedy then wrote, “Justice Stevens’ analysis, in our view, should have been controlling in Bowers and should control here.”
Kennedy concluded his opinion striking down sodomy laws in the country by writing of the drafters of the Constitution and amendments to it, “They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”
As the news that Stevens will be leaving the court at the end of its current term in June or July hits, federal trial courts in California and Massachusetts are considering cases asking whether state or federal laws limiting marriage recognition are constitutional.
The questions about whether those laws will be allowed to continue or whether they will be struck down will not – for the first time in more than three decades – rest on Stevens’s shoulders. The decisions, however, as in so many others areas of the law, will rest in large part on his words.
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