The Nine [102]
The gay clerks changed the Court, not because of their advocacy but because of their existence. They were, of course, pretty much indistinguishable from their straight colleagues, and that was precisely the point. The justices, who were without exception polite and decent people, treated the gay clerks with civility. When the longtime partner of a senior lawyer on the Court’s staff died, the first condolence note to the survivor came from Rehnquist. (The chief also had openly gay people on his immediate staff.) Thomas treated the partners of gay clerks with the same boisterous bonhomie as he did everyone else; the photo on his desk of Stevens’s clerk’s partner, the snowboarder, was no aberration. O’Connor gave T-shirts with the words “Grand Clerks” to the newborn children of all her law clerks; shortly after 2000, she learned that one of her former clerks, a gay man, was adopting a baby with his partner. In her briskly efficient way, O’Connor poked her head into her current clerks’ office, explained the situation, and said, “I should send one of the shirts, right? We think this is a good idea, don’t we?” The clerks nodded, and the shirt went in the mail.
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