Earlier this month, U. S. Supreme Court Justice John Paul Stevens announced he would retire, and the departure of the court’s leading liberal could have a significant impact on the future of the LGBT-rights movement.
At 2 p.m. May 6, the National Constitution Center will bring together a panel of experts from the University of Pennsylvania Law School to discuss the next phase of the Supreme Court.
Panelist Kermit “Kim” Roosevelt, a constitutional-law professor who’s written numerous articles on LGBT-rights issues, said Stevens has been “one of the best” on LGBT issues.
Roosevelt, the great-great-grandson of President Theodore Roosevelt, noted that Stevens voted against the majority in a 1986 case in which the court upheld Georgia’s ban on sodomy.
Although the law was not struck down at that time, Stevens wrote in his dissent that the perceived immorality of a certain practice does not provide sufficient grounds for prohibiting the practice via law.
“From the standpoint of the individual, the homosexual and the heterosexual have the same interest in deciding how he will live his own life and, more narrowly, how he will conduct himself in his personal and voluntary associations with his companions. State intrusion into the private conduct of either is equally burdensome,” Stevens wrote.
Roosevelt noted that Stevens also advocated in his dissent for the court to use a more stringent form of judicial review when hearing cases of sexual-orientation discrimination.
“In the Georgia sodomy case, he was arguing that sexual-orientation discrimination should get heightened scrutiny, and he was the last person on the court to have made that argument,” Roosevelt said. “The court of course has become more receptive to discrimination claims on the ground of sexual orientation — they struck down the Texas sodomy ban — but they haven’t announced that they would apply heightened scrutiny, akin to how they consider race and sex discrimination. That’s something that Justice Stevens wanted to do.”
The LGBT community has been watching several cases that could make it to the Supreme Court in the near future, such as the challenge from Massachusetts against the Defense of Marriage Act and the Proposition 8 suit in California.
Roosevelt surmised that if Stevens had still been on the court for the Prop. 8 case, he would side with the LGBT community — with the majority of the court — but he predicted the court would not take up the case.
“I think that if the court were forced to take the case, it would strike down Prop. 8 by a 5-4 vote. But I think that the justices would think this was getting out a little too far in front of popular opinion, so they would rather not decide the gay-marriage issue yet,” Roosevelt said. “This is what they did with interracial marriage: They declined to hear a series of cases, presumably because they were worried about a backlash. So if the 9th Circuit upholds Prop. 8, I think the court will decline to hear the case. If the 9th Circuit strikes it down, that will force their hand.”
Stevens’ departure has opened up the possibility of the first nomination of an openly LGBT Supreme Court justice, but Roosevelt doubts that will happen this year.
“I think it’s unlikely, unfortunately,” he said. “I just don’t think the right candidate is there.”
Openly lesbian Stanford Law School professor Pamela Karlan has been mentioned as a possible replacement for Stevens, but Roosevelt thinks the president will go in a different direction.
“I’m a big fan of Pamela Karlan, but I think she’s a little bit too theoretically ambitious and liberal. She’s the liberal intellectual that the left would like to see on the court to fight it out with [conservative Justice Anthony] Scalia, but I don’t think Obama is going to want to get into a big fight over the nomination. I think he’s going to go for a more centrist candidate.”
Roosevelt said he believes an openly LGBT justice will eventually make his or her way to the Supreme Court, but in the meantime, the growing acceptance of the LGBT community lessens the necessity for an out justice to advance LGBT-rights issues.
“The nice thing is that as support gets more mainstream, you could have a moderate liberal who would be very good on these issues. If you look at public-opinion surveys, there seems to be a very steady increase in support for gay and lesbian rights, so I think what’s going to happen in the future is that you won’t actually need people who are especially committed to gay and lesbian-rights issues: You’re going to get that as part of any sort of fairly centrist jurisprudence package.”
For more information about the panel discussion May 2, visit www.constitutioncenter.org.
Jen Colletta can be reached at [email protected].