Queering the Rehnquist Court

Abstract

Rehnquist Court is intriguing, to say the least, and it promises to shed some light on the particular ways in which the constitutional law of LGBT rights was transformed from 1986 to 2003. The conservative Court’s 2003 decision to overturn Bowers v. Hardwick—or, as Burgess puts it, to give Bowers a makeover—is certainly in need of explanation, and I’m open to the claim that queer theory might help provide that explanation. I’m not yet convinced, however, that “makeover” is a better metaphor than “reversal” for this dramatic shift on the Court. In particular, Burgess suggests that two key features of the Queer Eye makeovers are their uncertain success—will the straight guy maintain his new self after the Fab Five go home?—and their incompleteness—how much of a transformation can the Fab Five work if they have to stay true to the straight guy’s personality and, in particular, if he has to stay straight, occupying his conventional male role in a heterosexual relationship? These features of the Queer Eye makeovers might well illuminate the Court’s makeover of Bowers by calling attention to the following questions: Did the Court’s decision in Lawrence v. Texas successfully lay Bowers to rest, or will the old straight decision reemerge when no one’s looking? And how sweeping was the Court’s makeover in any event? Did Lawrence stay true to the core personality traits of Bowers? Or did the judicial Fab Five fundamentally refashion this straight precedent? And is the new constitutional law of LGBT rights severely limited by any lingering remnants of the hostile 1986 precedent? These are crucial questions, and while I’m open to being persuaded otherwise, I actually think that the Court’s recent decision marked more than a partial makeover. Justice Kennedy’s opinion in Lawrence, following his opinion seven years earlier in the Rehnquist Court’s other landmark gay rights decision, Romer v. Evans, both reflected and helped to enact a fundamental change in gay and lesbian rights. To my mind, the most interesting and difficult question is why in the world a justice appointed by Ronald Reagan would issue these sweeping pro-gay decisions. My own view is that Romer and Lawrence stand together as such a remarkable declaration of support for gay rights that it must be wrong to characterize the Rehnquist Court as a conservative Court. Or, if not wrong, then at least incomplete. Consider Kennedy’s opinion for the Court in Romer. This opinion was cautious, to be sure, but it clearly recognized that the federal courts must protect minority groups that have faced prejudice and discrimination from majoritarian tyranny, and that gays and lesbians are such a group. For a Reagan appointee to declare, just ten years after Bowers, that “[a] State cannot . . . deem a class of persons a stranger to its laws”—and for this same Reagan appointee to hold, just seven years later, that the Bowers “precedent demeans the lives of homosexual persons,” that it “was not correct when it was decided, and . . . is not correct today,” and that gays and lesbians “are entitled to respect for their private lives”—is truly remarkable. Take another Reagan appointee, Sandra Day O’Connor. Burgess mentions O’Connor only briefly, noting her place as one of the phobic five from Bowers and her decision 17 years later to join the Court’s result in Lawrence, but leaving unexplored the apparent tension between these two votes. Building on Romer, O’Connor wrote separately in Lawrence to make clear that “moral disapproval” of gays and lesbians, “like a bare desire to harm the group, is an interest insufficient to satisfy” the Court’s constitutional scrutiny. Relying on the constitutional guarantee of equal protection, rather than the fundamental liberty that Kennedy emphasized, O’Connor insisted that Texas could not outlaw certain sex acts only when they were committed by same-sex couples. While O’Connor’s reasoning was narrower than Kennedy’s along one dimension, it was broader along another dimension. It was narrower because it implied the unconstitutionality of the sodomy laws in only four states— those that outlawed sodomy only for same-sex couples— while Kennedy’s sweeping liberty argument invalidated all 13 state sodomy laws—the four discriminatory ones and also the nine that outlawed sodomy for everyone. But O’Connor’s opinion was broader in its implications for LGBT rights more generally. While Kennedy’s argument said nothing explicit about anti-gay discrimination, O’Connor focused precisely on this point. And when subsequent gay rights disputes return to the Court—most notably the samesex marriage conflict—it is O’Connor’s equal protection argument that will prove most significant. So, once again, we have two members of the conservative majority who were willing to cast deciding votes for constitutional arguments in support of gay rights, and even to write sweeping opinions endorsing such arguments. The best explanation for this is that while O’Connor and Kennedy are conservative in many ways, they are unwilling to jettison the Court’s longstanding role as a defender of minority rights. Reagan’s other appointee—Antonin Scalia— quite clearly does want to jettison that role, but O’Connor and Kennedy have refused to go along. Where a rights claim