Courting Justice: Gay Men and Lesbians v. the Supreme Court

Joyce Murdoch and Deb Price
Basic Books ($32.50)

by Jane S. Van Ingen

After Frank Kameny lost his federal government job in 1957 and the Supreme Court sided with the feds, he fought back and became one of the first gay rights advocates. But working tirelessly on behalf of gay and lesbian issues for 40 years has taken its toll—at the age of 72, Kameny lives in his deceased mother's home and the shirt on his back is barely wearable.

Kameny's story is one of the numerous meticulously detailed Supreme Court cases, and the lower court proceedings that led to them, that this 530-page tome explores. Murdoch, a managing editor at the National Journal, and Price, a columnist at the Detroit News, have combed through numerous court documents, many of which are incomplete, and talked to dozens of clerks, lawyers, advocates, and friends and family members of the justices.

What they found is that the Supreme Court is consistently hostile to gays. The Court protected the gay press early on in the 1950s when it defended the distribution of One, one of the first gay American publications, but it otherwise has a lousy track record right up to the present day—the justices upheld the Georgia sodomy law in 1986, and just last year defended the Boy Scouts' exclusion of gay scoutmasters.

In order to better understand these cases, the authors describe the justices behind them—not just their ideological stances but their history, background, relationship with clerks (Lewis Powell, a justice in the '80s, had many gay clerks yet remained oblivious to the outside world) and how their perspectives on the issues changed the longer they sat on the bench. For example, William Douglas, a justice in the '50s and '60s, spent his youth hopping freight trains because he was too poor to buy a ticket; he grew up to be a die-hard individualist who became close friends with a lesbian couple. Ruth Bader Ginsburg always remembers that she was confirmed to the Supreme Court with the assistance of one of her former clerks, Barbara Flagg, a lesbian who, along with her partner, deflected criticism from feminist groups.

Though Price and Murdoch are unapologetic in their passion for gay, lesbian, and bisexual rights (the authors note that AIDS and transgendered issues are possible subjects for another book), the book is not one-sided. They take pains to dig up whatever court documents they can find and talk to the spouses and children—if that's what it takes—of present and former justices to figure out how and why they reached a certain decision. Tom Clark, a justice during the '60s and '70s, coined the phrase "afflicted with homosexuality" in a 1967 case, giving the INS a free ride to deport gay immigrants. Yet Clark had a beloved gay nephew who moved to France to be with the man he loved. Clark was a prudish but compassionate man, according to his two adult children, who didn't have any direct, deep animosity toward homosexuals. Justices are in general cut off from the rest of society, so it's not surprising that Clark's daughter notes that the cases he ruled on were simply impersonal to him.

The authors also excel in their ability to follow up with the hundreds of people who have gone to the Supreme Court. Sharon Kowalski became severely disabled in a car accident, and her parents prevented her partner, Karen Thompson, from taking her home. Kowalski became a cause celebré in the gay and disability communities; after an eight-year struggle, Thompson was finally able to bring her lover home in 1992. When the authors caught up with the duo seven years later, they saw that Thompson still shows extraordinary devotion to Kowalski, who spends her days in an adult day care center and lives with Thompson and her new partner.

Despite the subject matter's overriding heaviness, there are moments of lightness. In 1986, while the Supreme Court was listening to Georgia officials' reasons for arresting Michael Hardwick, a bartender in Atlanta, for having sex in his own bedroom, Hardwick was spending "an unbelievably romantic day" in Washington D.C. with Evan Wolfson, a young gay-rights attorney at the time.

An obvious must-read for gay and lesbian lawyers and law students, who will find much value in the justice's interpretations of the Constitution, Courting Justice also provides the layperson with a concrete sense of the people behind the Supreme Court and its cases. Even readers not especially interested in gay and lesbian civil rights will gain a clearer understanding of how the Supreme Court and lower courts operate.

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