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  WINDY CITY TIMES

Justice Souter's role in LGBT history
by Lisa Keen, Keen News Service
2009-05-06

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The U.S. Supreme Court is about to lose its only confirmed bachelor.

Justice David Souter, who apparently wants to celebrate his 70th birthday in September by not prepping for the start of the court's 2009-2010 session, confirmed Friday that he is retiring in July, at the end of the 2008-2009 term.

President Obama interrupted a routine White House press conference May 1 to make the announcement.

President George H.W. Bush appointed Souter in 1990, and the New Hampshire Republican quickly surprised liberals and conservatives alike by voting with the liberal side of the court on many cases, including gay ones.

National gay groups had opposed his confirmation, ACT UP protesters disrupted his confirmation hearing, and U.S. Sen. Ted Kennedy, D-Mass., voted against him, predicting he would "solidify a 5-4 anti-civil rights, anti-privacy majority."

And yet, within two years, he had emerged as a ray of hope for gay-rights advocates.

"Justice Souter emerged as a thoughtful and dependable vote for gay equality and inclusion," said Evan Wolfson, head of the national Freedom to Marry group and, for many years, a key attorney for Lambda Legal Defense and Education Fund.

Souter was the first justice to refer to LGBT people as "gay, lesbian and bisexual," instead of "homosexuals." He did so in writing the 1995 opinion in Hurley v. GLIB—a case in which a gay Irish group challenged the right of a St. Patrick's Day parade organizer in Boston to exclude it from participating as a contingent. Souter, for a unanimous court, said the parade organizers had a First Amendment right to exclude the gay contingent even though a Massachusetts public-accommodations law prohibited discrimination based on sexual orientation. But gay legal activists were struck by the tone of respect Souter demonstrated for gays in the opinion. The opinion said that laws prohibiting discrimination based on sexual orientation are "well within" the state's power "to enact when a legislature has reason to believe that a given group is the target of discrimination … ." The opinion also characterized as "fact" that "some Irish are gay, lesbian, or bisexual" and that openly gay marchers "suggest their view that people of their sexual orientation have as much claim to unqualified social acceptance as heterosexuals."

In Hurley, said Wolfson, Souter's "tone and even use of respectful vocabulary helped shift the court to a new path." In the oral arguments during consideration of Boy Scouts of America v. Dale, said Wolfson, Souter was "a serious and probing questioner that helped articulate the distinctions between Hurley and our case against the Boy Scouts discrimination." When the 5-4 majority ruled in favor of Boy Scouts excluding gays, noted Wolfson, Souter voted with the dissenters.

Souter also dissented against a majority opinion that the University of Virginia had to provide student fee funding to an anti-gay Christian newspaper on campus. In Rosenberger v. University of Virginia, he said the Establishment Clause of the constitution is meant to bar the use of public funds "for the direct subsidization of preaching" religious tenets.

He voted with the 6-3 majority in the pro-gray ruling—Romer v. Evans— that struck down one of many anti-gay initiatives that sought to block gays from seeking protection from discrimination under state law. And he was with the 6 to 3 majority striking down sodomy laws in 2003, with Lawrence v. Texas.

In 1994, he wrote the court's decision in Farmer v. Brennan in favor of a male-to-female transsexual prisoner who was incarcerated with male prisoners. The opinion said a prison warden may have violated the Eighth Amendment constitutional guarantee against cruel and unusual punishment if he deliberately assigned the prisoner to a male prison knowing that to do so would cause "substantial risk of serious harm" to the prisoner.

In 1998, he alone dissented from the court's opinion, in National Endowment for the Arts v. Finley, that Congress could prohibit the agency from using any of its funds to support art that "may be considered obscene," including art with "homoeroticism." Two of the four plaintiffs fighting the law were gay, and the impetus of the law had been the funding of an exhibit of the work of gay photographer Robert Mapplethorpe.

Nan Hunter, a longtime gay legal activist and now professor of law at Georgetown University Law School, said Souter was more a reliably progressive vote than a leader, but she acknowledged that his "respectful tone" in Hurley "signaled a dramatic shift from the casually contemptuous tone of the Court's opinion" in the 1986 Bowers v. Hardwick decision upholding sodomy laws.

Souter's successor

Speculation over who President Obama will nominate to fill Souter's seat began even before Souter officially announced his retirement.

Many political and court observers are saying it will almost certainly be a woman because currently only one of the court's nine members is a woman.

Neither the president nor White House spokespersons offered any hint of names, but White House Press Secretary Robert Gibbs reiterated a commitment candidate Obama made in November 2007—that he would appoint a justice who believes the constitution provides for a right to privacy. That right, which many but not all judges and justices believe is implicit in the constitution, is implicated in a wide range of legal issues involving LGBT people. It was key to the overturning of laws prohibiting sodomy, and was the basis of a successful lawsuit against police officers in a small Pennsylvania town who were blamed for a teenager's suicide when the threatened to tell his family he was gay. ( In that case, it was not known whether the teen was gay but the 3rd Circuit U.S. Court of Appeals ruled that the constitutional right to privacy "respects not only an individual's autonomy in intimate matters, but also an individual's interest in avoiding divulgence of highly personal information." )

In his remarks in the press room, Obama said he would seek someone who "honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded and who brings a thoughtful understanding of how to apply them in our time."

Regardless of who Obama nominates, the Republicans in the Senate are expected to stage a big fight. And given that Gay & Lesbian Advocates & Defenders recently filed a lawsuit challenging the federal Defense of Marriage Act ( DOMA ) in federal court, Republicans are almost certainly going to quiz the nominee about his or her position concerning laws regarding same-sex marriage and relevant constitutional clauses.

2009 Keen News Service

Read world and national news online at www.WindyCityMediaGroup.com . Among the topics:

—Burundi banning gay sex; and

—the new U.S. global AIDS ambassador.


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