The Nine (32 page)

This social transformation at the Court occurred against a starkly different legal landscape. In the 1986 case of
Bowers v. Hardwick
, the Court had upheld the conviction of a Georgia man for consensual sodomy with another man. Byron White’s opinion for the 5–4 majority was utterly contemptuous of the whole concept of gay rights. “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,” White wrote. In his brief, dismissive concurrence, Chief Justice Burger wrote, “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.” For a generation of gay people and their allies, the case remained an open wound.

One Saturday in the spring of 1986, Justice Lewis Powell struck up an unusual conversation with one of his law clerks, Cabell Chinnis Jr., about
Bowers v. Hardwick
. As Chinnis recounted the exchange to Joyce Murdoch and Deb Price, authors of a history of gay rights at the Supreme Court, Powell asked about the prevalence of homosexuality, which one friend-of-the-court brief estimated at 10 percent. Chinnis said that sounded right to him. “I don’t believe I’ve ever met a homosexual,” Powell replied. Chinnis said that seemed unlikely. Later the same day, Powell came back to Chinnis and asked, “Why don’t homosexuals have sex with women?” “Justice Powell,” he replied, “a gay man cannot have an erection to perform intercourse with a woman.” The conversation was especially bizarre not just because of its explicit nature but because Chinnis himself was gay (as were several of Powell’s previous law clerks). Earlier in the term, Chinnis had introduced Powell to the man he had lived with, but the clerk never knew for sure what Powell understood about his sexuality. The matter turned out to be of more than passing significance because Powell, after a great deal of agonizing, ultimately provided the fifth vote in support of White’s opinion in
Bowers
.

Seventeen years later, when the Court weighed whether to overturn
Bowers
, no justice could conceive of asserting that he (or she) had never met a homosexual. But the fact that the justices all knew gay people did not necessarily mean that they were inclined to overrule what was still a fairly recent precedent.

The facts in the new case,
Lawrence v. Texas
, were uncomplicated and very similar to those that gave rise to
Bowers
. On September 17, 1998, Houston police, responding to a report of a weapons disturbance, entered an apartment where John Geddes Lawrence and Tyron Garner were having sex. The two men were arrested for violating the Texas law against “deviate sexual intercourse,” which prohibited oral and anal sex. The question for the Court was whether a state could constitutionally prohibit consensual sexual conduct between adults.

Even at the oral argument, it was apparent how much the Court had changed over the years. All Rehnquist could say in support of the Texas law was that “the kind of conduct we’re talking about here has been banned for a long time.” Even Scalia, who had, like Rehnquist and O’Connor, supported the
Bowers
opinion, sounded defensive. “It’s an act committed in private,” he said. “The police have not gone around knocking on bedroom doors to see if anyone—I mean—this is not the kind of a crime that the police go around looking for.” In questioning Charles A. Rosenthal Jr., the Harris County district attorney, Breyer called the
Bowers
decision “harmful in consequence, wrong in theory, and understating the constitutional value” and asked, “How do you respond to that?”

Rosenthal tried to change the subject.

But Breyer wouldn’t give up, saying, “I would like to hear your straight answer.”

The worldly Supreme Court audience chuckled at the double entendre, which Breyer himself neither intended nor noticed.

At the conference, only three justices supported the Texas law—Rehnquist, Scalia, and Thomas. O’Connor could not bring herself to repudiate her vote in
Bowers
altogether, but she couldn’t bring herself to reaffirm it, either. So she found a characteristic middle ground, voting to overturn Lawrence’s conviction on the ground that the prosecution of homosexuals (but not heterosexuals) violated the Equal Protection Clause. That left five votes—Stevens, Kennedy, Souter, Ginsburg, and Breyer—to overturn
Bowers
, and Stevens wisely assigned Kennedy to write the opinion. (Inside the Court, Kennedy was sometimes said to be “clerk-driven”—that is, overly influenced by his law clerks.
Lawrence
demonstrated that the charge was both unfair and unwarranted, because three of Kennedy’s four clerks that year were committed conservatives.)

As the Court often saved the most controversial opinions for the last day of the term, everyone knew that the decision in
Lawrence v. Texas
would be announced on June 26, 2003. Justices do not read their full opinions in open court but generally give abbreviated versions for the tourists and other (usually) baffled spectators who happen to be present. But on this day, gay rights supporters from around the country filled the spectator benches, waiting for the result in
Lawrence
. The audience stirred when Rehnquist, impassive as always, said, “The opinion of the Court, number 02–102.
Lawrence versus Texas
will be announced by Justice Kennedy.”

Kennedy’s voice had an uncharacteristic quaver. He was more worldly than Lewis Powell—Kennedy knew many gay people—but he was also a conservative man by most definitions of that term. A devout and observant Catholic, he needed no instruction in the religious and moral prohibitions on homosexual conduct. He was, simply, a man who had been transformed by the changing world around him.

“We granted certiorari to consider the constitutional claims presented, including the question whether
Bowers v. Hardwick
should be overruled,” he said, then quoted a line from that opinion: “The issue as presented is whether the federal Constitution confers a fundamental right upon homosexuals to engage in sodomy.” But that framing of the question, Kennedy said, “demeans the claim put forward, just as it would demean a married couple if it were said marriage is simply about the right to have sexual intercourse. The laws involved in
Bowers
and here are, to be sure, statutes that do prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes seek to control a personal relationship that is within the liberty of persons to choose without being punished as criminals.” The nation, he went on, “has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives.” This was autobiography, for Kennedy’s own life had been shaped by those beliefs—but then he said those rules
cannot
prescribe what the Constitution commands for all.

The next part of the opinion—the key part—displayed the influence of Salzburg in Kennedy’s jurisprudence.
Bowers
made “sweeping references” to long-standing prohibitions on sodomy in Western civilization. These did not, however, “take account of authorities in an opposite direction,” Kennedy said, “including the decision of the European Court of Human Rights in a case called
Dudgeon v. United Kingdom
. That decision, with facts like Bowers and the instant case, held that laws prescribing this sort of conduct are invalid under the European Convention on Human Rights.” The pre-Salzburg Kennedy—even the pre–
Bush v. Gore
justice—would never have made such a reference.

As the tension rose in the courtroom, Kennedy finally announced the holding on the case: “The instant case requires us to address whether
Bowers
itself has continuing validity. We conclude the rationale of
Bowers
does not withstand careful analysis,
Bowers
was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent.
Bowers versus Hardwick
should be and now is overruled.”

There was no mistaking the significance of Kennedy’s opinion. The point was not that the Court was halting sodomy prosecutions, which scarcely took place anymore. Rather, the Court was announcing that gay people could not be branded as criminals simply because of who they were. They were citizens. They were like everyone else. “The petitioners are entitled to respect for their private lives,” Kennedy wrote simply. “The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.” The people who had devoted their lives to that cause understood precisely what had happened, which was why, to a degree unprecedented in the Court’s history, the benches were full of men and women sobbing with joy.

Photo Insert

Photo 1

On September 6, 2005, the justices lined up on the steps of the Court to greet the casket of William H. Rehnquist. From the top, John Paul Stevens (in bow tie), Sandra Day O’Connor, Antonin Scalia, Clarence Thomas, Ruth Bader Ginsburg, and Stephen G. Breyer. Anthony M. Kennedy was in China, David H. Souter in New Hampshire. In the upper right corner is John O’Connor, Sandra’s ailing husband.

Photo 2

Seven of Rehnquist’s former law clerks and one former administrative assistant carried his casket. John G. Roberts Jr., who worked for the then-associate justice in 1980–81, is second in line on the right.

Photo 3

O’Connor weeps as Rehnquist, her friend of more than fifty years, returns to the Court for a final time.

Photo 4