On gay rights, high court reflects a changing society

Published: Sunday, Jun. 9, 2013 - 12:00 am | Page 16A
Last Modified: Monday, Jun. 10, 2013 - 8:41 am

WASHINGTON – As Justice Lewis Powell was struggling with how to cast the decisive vote in a 1986 Supreme Court case that would end up devastating the gay rights movement, he told his fellow justices that he had never met a homosexual.

In truth, one of his four law clerks that term was gay.

The atmosphere at the court today is far different from 1986, with a pace of change that may have surpassed that in the rest of society. Openly gay law clerks are now common in the chambers of both liberal and conservative justices. In January, Chief Justice John Roberts formally admitted about 30 members of the National LGBT Bar Association to the Supreme Court's bar, the first time lawyers with a gay legal group achieved that status.

As the justices consider two major cases on same-sex marriage, with decisions expected this month, they are, of course, focused on legal issues. But students of the court say other factors may also play a role.

"In addressing for the first time whether the law must recognize lesbian and gay couples as families," said David Codell, who served as a law clerk to Justice Ruth Bader Ginsburg, "certain of the justices undoubtedly will reflect upon their real-world experiences of getting to know and to understand lesbian and gay people as individuals and as members of families."

The justices are weighing whether to strike down a federal law that denies federal benefits to married same-sex couples in states that allow such unions, as well as California's ban on same-sex marriage. The second case could establish a nationwide constitutional right to same-sex marriage, though most observers expect a narrower ruling.

Over the years, the court's embrace of gay rights has closely tracked changes in popular attitudes, in the legal culture and, perhaps especially, in the visibility of openly gay people at the court. In 1986, when Powell made his remark, there had never been an openly gay law clerk at the Supreme Court. At the time, it was often professionally hazardous for gay lawyers to come out.

Although no comprehensive record of gay Supreme Court law clerks exists, Joyce Murdoch and Deb Price – authors of "Courting Justice," a 2001 history of gay rights cases at the court – identified 18 gay men and four lesbians who had been clerks.

Murdoch and Price also found that the justice most likely to hire gay clerks was the one who said he had never met a homosexual.

"For six consecutive terms in the 1980s," they wrote, "one or more of Powell's four clerks was gay."

Daniel Ortiz, who clerked for Powell in 1984 and 1985 and is now a law professor at the University of Virginia, said the clerks of that era kept their sexual orientations to themselves in professional settings.

"I certainly wasn't out to anyone who worked at the court," he said.

In the next term, the court issued Bowers v. Hardwick, the 5-4 decision in which Powell's vote was crucial. The decision upheld a Georgia law that made sodomy a crime.

Former clerks and court historians agree that Powell made the remark about having never met a homosexual during a private conference with his fellow justices as they considered the case.

According to many accounts, he made a similar statement in front of a clerk.

Pamela Karlan, now a law professor at Stanford, heard about the comment from her boss that term, Justice Harry Blackmun. In a recent interview, she also recalled Blackmun's response: "Look around your chambers."

C. Cabell Chinnis, a gay lawyer who practices law in Palo Alto, was one of Powell's clerks as the justice was struggling with how to vote in the Hardwick case. In an interview, Chinnis said his boss must have known about his sexual orientation.

"He had met my boyfriend," Chinnis said.

Indeed, the justice sought him out for advice precisely because he wanted to learn about the mechanics of gay sex, Chinnis said, recalling an uncomfortable exchange on the subject.

"This 78-year-old man is asking me about erections at the Supreme Court," he said.

The conversation was unusual, as Chinnis was not the clerk who had been assigned to work on that case. But the two kept talking as the justice wrestled with the issues in the case. At one point, Chinnis recalled, he made a plea to his boss based on a comparison to a pending case about the right to vote in judicial elections.

"It's more important to me to make love to the person I love," Chinnis remembered saying, "than to vote for a judge in a local election."

Chinnis said he had a theory about one of Powell's motivations in saying something untrue to the other members of the court: to protect his clerk and perhaps others.

"Even though he knew one or more people who were gay, they were young and vulnerable," Chinnis said. "Coming out in a professional setting could be very dangerous."

At the justices' conference, Powell voted to strike down the Georgia law before later changing his vote. Chinnis, who had been euphoric when he learned of his boss's initial vote, was now heartsick.

"I was dumbstruck," he said. "It was a tremendous disappointment."

An impassioned dissent from Blackmun correctly predicted that the decision would not last. Other clerks said the dissent was written by Karlan, who maintains a tactful silence on the authorship.

Powell retired the next year and was succeeded by Justice Anthony Kennedy, who is widely seen as the swing vote in the current gay rights cases.

Within just a few years, the climate for gay rights began to change. Powell himself, in 1990, expressed reservations about his vote in the Hardwick case. "I think I probably made a mistake in that one," he said at New York University's law school.

Paul Smith, a gay lawyer who clerked for Powell in 1980 and 1981, said that by the 1990s, "people started to be out in their clerkship applications."

These days, justices are more likely to work and socialize with openly gay people than most Americans are. Ten percent of adults who live in the District of Columbia say they are gay, lesbian, bisexual or transgender, according to a February Gallup poll. That is a much higher percentage than in any state.

Law schools and the legal profession have, moreover, been particularly welcoming to gay and lesbian people,

John Jeffries, a former Powell clerk who teaches law at the University of Virginia and wrote a 1994 biography of the justice, said the presence of openly gay clerks at the Supreme Court these days is but an instance of a societal transformation on gay rights.

"The universe has flipped" since 1986, he said. "Everything about the world has changed. The fact of gay clerks is a grain of sand in that beach."

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Read more articles by Adam Liptak

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