Washington Blade - September 9, 2005
Chris Crain, Executive Editor

IT MIGHT COME as a surprise to many that the Supreme Court justice with the worst record on issues of importance to gay Americans is not Antonin Scalia or Clarence Thomas, but the dearly departed chief justice, William Rehnquist.

Scalia has no doubt taken the leadership role on the court opposing the equal rights of gay Americans, writing biting dissents in two landmark cases: Romer vs. Evans in 1996 and Lawrence vs. Texas in 2003. But Rehnquist joined Scalia's dissent in both cases, and boasts an unblemished record opposing gay rights that dates back to his vote with the 5-4 majority in the infamous 1986 case of Bowers vs. Hardwick.

In that case, which was overturned only two years ago in Lawrence, Rehnquist joined an opinion by Justice Byron White turning aside a gay Georgia man who was arrested in the privacy of his own bedroom for having sex with another man. White's opinion, dripping with derision, rejected as "facetious at best" the man's suggestion that his rights were comparable to the family-related rights of heterosexual couples.

A LAWYER FRIEND of mine once remarked that he planned to celebrate White's eventual death by spitting on his grave, something I hope he thought better of when that justice died three years ago, after resigning from the court in 1993.

But I might forgive him and others a round of "Ding Dong!" from the "Wizard of Oz" at the passing of Rehnquist, whose hostility to any claim that might benefit gays seems borne more out of personal animus than the ideologically driven Scalia and Thomas.

Scalia, in particular, at least votes occasionally to protect the rights of gays and others who challenge conventional sexual mores, at least when they seek First Amendment protection.

So in 1997, Scalia (and sidekick Thomas) voted with the majority in Reno vs. ACLU to strike down the Communications Decency Act, which broadly banned sexually explicit material on the Internet. Rehnquist dissented, although he did see fit to champion the First Amendment rights of the Boy Scouts of America, writing the 5-4 majority opinion upholding that group's right to exclude assistant scoutmaster James Dale and other gays.

He was similarly excited by the First Amendment when it was invoked by organizers of Boston's St. Patrick's Day parade, in their desire to block an Irish gay group from participating. I happen to agree with the majority decisions in both the Dale and St. Patrick parade cases, but Rehnquist is notorious for vindicating civil rights only when they appeal to him politically.

This is, after all, the same William Rehnquist who was among the least friendly to claims involving the right to vote and equal protection, but who found religion on both rights when the petitioner was George W. Bush and the stakes were the 2000 presidential election. The chief justice was, in other words, "results-oriented," deciding cases based on which side he liked best and working his way backward to whatever argument suited the moment. In that sense, he was every bit the "judicial activist" that now-President Bush loves to excoriate.

IN MANY WAYS, Rehnquist personified the arrogant jurist who turned his nose at the plight of those seeking redress from the courts. He upbraided lawyers who dared to refer to him in oral argument as "the chief justice of the court," reminding them that his title was, in fact, "Chief Justice of the United States." He famously designed special gold bands for his judicial robe after seeing a Gilbert & Sullivan play and wore it for the special occasion of presiding over President Clinton's impeachment trial in the U.S. Senate.

In Bragdon vs. Abbott, the 1998 case that established people with HIV were covered by the Americans with Disabilities Act, even if their disease had not yet progressed to full-blown AIDS, Rehnquist authored an especially harsh dissent.

Not only did he disagree that HIV should be covered as a general matter, he suggested to the contrary that it should almost never be covered, except perhaps if the HIV-positive person is a woman with a previously expressed strong desire to bear children.

He went even further to reject the majority's suggestion that courts be led by accepted public health guidelines about the danger of HIV transmission. In the Bragdon case, which involved a dentist refusing to treat an HIV-positive patient, Rehnquist pointed out the risk of transmission wasn't entirely hypothetical because at least seven dental workers were documented as having contracted the virus, even though it was not even clear that the transmission was related to their occupation.

Considering Rehnquist's abominable record, it is hard to imagine why the Log Cabin Republicans chose to issue a statement to "honor his service to the country on our nation's highest court." What, exactly, does a justice have to do for Log Cabin not to "honor his service"?

It's also hard to imagine that Bush's nominee to replace Rehnquist, John Roberts, will be anything but a major improvement. And if the president bows to political pressure and appoints a more moderate woman or Hispanic to replace Justice Sandra Day O'Connor, now that her post is again vacant, then the Supreme Court might actually prove friendlier to gay rights in the future.

050909
WB050905

Always watch for outdated information. This article first appeared in 2005. This material is designed to support, not replace, the relationship that exists between you and your doctor.

AEGiS presents published material, reprinted with permission and neither endorses nor opposes any material. All information contained on this website, including information relating to health conditions, products, and treatments, is for informational purposes only. It is often presented in summary or aggregate form. It is not meant to be a substitute for the advice provided by your own physician or other medical professionals. Always discuss treatment options with a doctor who specializes in treating HIV.

Copyright ©1980, 2005. AEGiS. All materials appearing on AEGiS are protected by copyright as a collective work or compilation under U.S. copyright and other laws and are the property of AEGiS, or the party credited as the provider of the content. .