Justices’ gay clerks provide evidence of change
Rights decisions generally track cultural shifts
WASHINGTON — As Justice Lewis F. Powell Jr. was struggling with how to cast the decisive vote in a 1986 Supreme Court case that would end up devastating the gay rights movement, he told his fellow justices that he had never met a homosexual. In truth, one of his four law clerks that term was gay.
The atmosphere at the court today is far different from 1986, with a pace of change that may have surpassed that in the rest of society. Openly gay law clerks are now common in the chambers of both liberal and conservative justices.
In January, Chief Justice John G. Roberts Jr. formally admitted about 30 members of the National LGBT Bar Association to the Supreme Court’s bar, the first time lawyers with a gay legal group achieved that status.
As the justices consider two major cases on same-sex marriage, with decisions expected this month, they are, of course, focused on legal issues. But students of the court said other factors might also play a role.
“In addressing for the first time whether the law must recognize lesbian and gay couples as families,” said David C. Codell, who served as a law clerk to Justice Ruth Bader Ginsburg, “certain of the justices undoubtedly will reflect upon their real-world experiences of getting to know and to understand lesbian and gay people as individuals and as members of families.”
The justices are weighing whether to strike down a federal law that denies federal benefits to married same-sex couples in states that allow such unions, as well as California’s ban on same-sex marriage. The second case could establish a nationwide constitutional right to same-sex marriage, though most observers expect a narrower ruling.
Over the years, the court’s embrace of gay rights has closely tracked changes in popular attitudes, in the legal culture and, perhaps especially, in the visibility of openly gay people at the court. In 1986, when Powell made his remark, there had never been an openly gay law clerk at the Supreme Court. At the time, it was often professionally hazardous for gay lawyers to come out.
Although no comprehensive record of gay Supreme Court law clerks exists, Joyce Murdoch and Deb Price — authors of “Courting Justice,” a 2001 history of gay rights cases — identified 18 gay men and four lesbians who were clerks. Murdoch and Price found that the justice most likely to hire gay clerks was the one who said he had never met a homosexual.
“For six consecutive terms in the 1980s,” they wrote, “one or more of Powell’s four clerks was gay.”
Daniel R. Ortiz, who clerked for Powell in 1984 and 1985 and is now a law professor at the University of Virginia, said the clerks of that era kept their sexual orientations to themselves in professional settings. “I certainly wasn’t out to anyone who worked at the court,” he said.