Washington Blade - September 9, 2005
Lou Chibbaro Jr.

Rehnquist's death, coming on the heels of Justice Sandra Day O'Connor's decision to resign from the court, gives President Bush the rare opportunity to fill two seats on the court with justices supportive of his conservative outlook on the role of the high court.

Last week, two days after Rehnquist's death, Bush nominated D.C. Court of Appeals Judge John G. Roberts to replace Rehnquist as chief justice. Bush's action came after the president selected Roberts in July to replace O'Connor as an associate justice to the high court. Bush will now nominate someone new to fill O'Connor's seat.

Four of the largest national gay rights groups announced their opposition to Roberts' nomination prior to Rehnquist's death. Other gay organizations, including Lambda Legal Defense & Education Fund, which specializes in litigation of gay cases, have withheld judgment on the Roberts nomination, saying they would wait until Roberts testifies this month at his Senate confirmation hearing.

An anti-gay legacy

While respectful of Rehnquist's role as head of the Supreme Court for the past 33 years, gay rights attorneys and several gay rights groups called his actions toward gay rights cases highly negative and motivated by a conservative, anti-gay ideology.

"I don't think the chief justice has a legacy on gay issues other than that he was pretty hostile on our issues," said Matt Coles, director of the ACLU's Lesbian & Gay Rights Project.

"He was a very smart individual," Coles said. "But he was a very ideologically driven justice."

Matt Foreman, executive director of the National Gay & Lesbian Task Force, was more blunt in his assessment of Rehnquist's opinions and rulings on the high court in gay and AIDS-related cases.

"Chief Justice Rehnquist's record has been consistent - consistently reactionary and consistently hostile to individual freedoms and equal justice, across the board," Foreman said. "His record on lesbian, gay, bisexual and transgender rights has been beyond regrettable; it has been dismal."

An analysis of Rehnquist's voting record and written opinions on gay and AIDS-related cases by gay rights attorneys, including attorneys with Lambda Legal, shows that he voted against the interests of gays or people with HIV/AIDS in at least 10 cases while he voted for the interests of gays in three cases.

Three of the cases where Rehnquist voted against the interest of gays were among the most important gay cases ever to come before the court, according to gay rights attorneys and other legal observers.

In 1986, Rehnquist sided with the majority in Bowers vs. Hardwick, which upheld the constitutionality of a Georgia sodomy law that criminalized oral and anal sex in private between consenting adults. The court decided the case in a 5-4 ruling.

Ten years later, Rehnquist joined a strong dissent written by Justice Antonin Scalia when they came out on the losing side of the 1996 case Romer vs. Evans. In this case, the high court ruled 6-3 to overturn an amendment to the Colorado constitution that prohibited the state legislature and cities and towns within the state from enacting laws protecting gays from discrimination.

Rehnquist again joined a Scalia-penned angry dissent in the 2003 case of Lawrence vs. Texas, which overturned the Texas sodomy law and the sodomy laws in 12 other states. In that case, the court voted 6-3 in what gay rights attorneys have called a landmark affirmation of the constitutional rights of gay people. The majority opinion, written by Justice Anthony Kennedy, holds that private, consensual sexual relations are a protected liberty under the Constitution's due process clauses. The decision overturned the 1986 Bowers vs. Hardwick decision.

In other cases, Rehnquist sided with the majority in the 1998 case refusing to review an appeals court decision upholding a voter initiative in Cincinnati that banned the city from passing anti-discrimination protections for gays. The refusal to review the Cincinnati ordinance, from which three justices dissented, came soon after the Colorado case that gay rights activists had argued was controlling.

In 2000, Rehnquist wrote the majority opinion in Dale vs. the Boy Scouts of America, in which the court upheld by 5-4 the Boy Scouts' First Amendment right to exclude gays and atheists from their ranks over and above a New Jersey statute that bans such discrimination.

Rehnquist sided with the 5-4 majority in the 1987 case San Francisco Arts & Athletics, Inc. vs. U.S. Olympics Committee, which upheld a lower court ruling allowing the Olympics Committee to bar the gay Arts & Athletics group from calling its planned competition the "Gay Olympics."

In 1998, Rehnquist joined an 8-1 majority in NEA vs. Finley to uphold a regulation adopted by the U.S. National Endowment for the Arts that allowed the NEA to deny federal arts grants to four artists - three of whom were gay - that sought funds for artistic works deemed to be "indecent."

The Lambda Legal analysis of Rehnquist's record shows he did not vote against gay interests in all of his rulings or opinions. In the 1998 case Oncale vs. Sundowner Offshore Services, Inc., Rehnquist joined all of his fellow justices in a unanimous decision allowing same-sex sexual harassment claims to be adjudicated under Title VII of the 1964 U.S. Civil Rights Act. The decision marked the first time same-sex sexual harassment was given equal status as a wrongful claim under federal law.

In 2000, Rehnquist once again joined the other justices in a unanimous decision, in Board of Regents vs. Southworth, which upheld the right of the University of Wisconsin to require all students to pay a mandatory student activity fee that subsidized gay student groups along with all other student organizations. A conservative student group filed suit to allow a waiver of the activity fee for students who objected to subsidizing the gay groups.

In a little noticed case in 1988, Webster vs. Doe, Rehnquist sided with the majority in a 6-2 ruling allowing a gay CIA employee who was fired because of his sexual orientation to have legal standing to sue the CIA for engaging in an improper personnel practice.

David Boez, a gay official with the Cato Institute, a libertarian think tank, called Rehnquist a champion of liberty within the U.S. constitutional system despite Rehnquist's opposition - in many instances - to the rights and freedoms of gays.

"Much of what Rehnquist did enhanced freedom and limited government in the United States," Boez said. "He felt limiting the power of the federal government is a way to protect freedom. But on gay issues, he consistently voted against rights."

Gay rights attorneys have had mixed views over Bush's decision on Sept. 5 to nominate D.C. Appeals Court Judge John G. Roberts to replace Rehnquist as Chief Justice. Bush had selected Roberts in July to replace O'Connor, prompting gay activists to join their allies in the U.S. Senate to examine Roberts' record on civil rights, including gay rights, and to call on senators to ask pointed questions about his views on gay issues likely to come before the court.

Coles of the ACLU disputed the view among some gay activists that Roberts would be far better for gays as chief justice than Scalia, whom many conservative groups favored for the chief justice post. Coles said most legal observers recognize that Scalia's harshly worded written opinions on the court - some of which have criticized his fellow justices - have had a polarizing effect that has not necessarily helped the conservative cause.

Roberts, who appears to be far more diplomatic and personable than Scalia, could be more effective to the conservative cause by building a consensus toward his own conservative, "strict constructionist" legal philosophy, Coles said.

The Senate Judiciary Committee was expected to begin its confirmation hearings on Roberts next week.

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