A tall, hulking man in his late 70s, William Rehnquist, then the chief justice of the U.S. Supreme Court, 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.
But such acceptance didn’t change his view of the law. Around that same time, the 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 the federal Defense of Marriage Act, which bars marriage benefits such as Social Security survivor payments for same-sex married couples. Separately, the court will decide whether to take up Proposition 8, California’s ban on same-sex marriage, which was approved by voters in 2008.
The cases come before a court that has shown increasing acceptance of the gay men and lesbians employed there.
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. 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.
Predictions for new cases are difficult, particularly for any momentous test of gay marriage. While the court has been open to protecting gay people from discrimination, it would be a leap for the court to require states to permit same-sex marriage, given past cases and since the vast majority of states do not recognize such unions.
Justice Anthony Kennedy, often the swing vote on this court, wrote the opinion in the 2003 gay-rights case, Lawrence v. Texas, vigorously endorsing privacy rights for gay men and lesbians and their intimate relations.
Justice Antonin Scalia — asked about his dissents in past gay-rights cases, voiced from the bench as well as in his written opinions — said he was merely reading the Constitution, which he says does not cover a right to same-sex relations.
“Where does it come from?” he said. “This is a trendy view of the current society elite. It’s not right to impose it on everybody else. It’s a democratic question. If you want to permit homosexual sodomy, then pass a law.”