A tall, hulking man in his late 70s, William Rehnquist, then chief justice of the United States, crawled down on all fours to say hello to the two little girls who had scurried under the table when he approached at a luncheon.
Sally Rider and her partner Betsy had tried to teach their two preschool-age daughters how to shake hands with Rehnquist. At the time, Rider was his top aide.
Recalling the episode nearly a decade later, Rider, 55, said the late conservative chief justice was as understanding of the girls’ shyness as he was accepting of Rider’s lesbian relationship and family. He never said a word.
Such acceptance didn’t change his view of the law. Around that same time, the U.S. Supreme Court struck down a Texas statute criminalizing private homosexual relations. And Rehnquist signed on to a stinging dissent that referred to Americans “protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”
This year, for the first time since that 2003 ruling, the nine Supreme Court justices – four of whom were not on the court then – face major gay-rights disputes. The court will decide, possibly as early as the end of September, whether to review a U.S. law that bars marriage benefits, such as Social Security survivor payments, for same-sex married couples. Separately the court will decide whether to take up California’s ban on same-sex marriage, approved by voters in 2008 and known as Proposition 8.
The cases come before a court that has shown increasing acceptance of the gay men and lesbians employed there. Inside the marble walls – as at many U.S. workplaces – there has been an evolution from secrecy about sexual orientation to awkward and anxious comings-out, to an atmosphere in which sexual orientation is not an issue.
In an institution where social rituals hew to centuries-old tradition, gay men and lesbians openly bring their same-sex partners to the Christmas party and the court sing-a-long.
But as the Rehnquist incident showed, it can be difficult to draw conclusions about how a justice’s personal involvement with gay people might influence rulings. Recent studies suggest that people who have close connections to gay individuals are more likely to support gay rights. But Supreme Court justices are supposed to uphold the Constitution and follow legal precedent, not personal preferences.
Individual justices clearly read the law differently. The more liberal members, for instance, say consensual gay relations are covered by the Constitution’s implicit right to privacy. The more conservative justices find no such privacy right in the Constitution. Personal experience could exert a subtle effect, though, on the thinking of justices in the middle of the court’s ideological spectrum, such as Justice Anthony Kennedy – who has previously taken the lead in gay-rights cases.
“It may not change (a justice’s) views at all on what the Constitution requires,” said Rives Kistler, who was a law clerk to Supreme Court Justice Lewis Powell in the 1982-1983 term and is now an Oregon Supreme Court justice. But Kistler, who came out after his clerkship and is now 63, added, “Hopefully, it allows judges to view the issue more objectively, without apprehension or being driven by a fear of the unknown.”
