A People's History of the Supreme Court

by Peter Irons

  Justice Scalia, who knew that gay activists looked on Romer as a first step toward overruling the Bowers case, began his acerbic dissent—joined by Chief Justice Rehnquist and Justice Thomas—with a sarcastic retort to the majority. “The Court has mistaken a Kulturkampf for a fit of spite,” he wrote. His reference to the nineteenth-century “culture war” between German intellectuals and the Catholic Church may have sent readers to their dictionaries, but Scalia accurately described the current American “culture war” between supporters of gay rights and their Religious Right opponents. Scalia accused the Court’s majority of taking sides in this conflict. “This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that ‘animosity’ toward homosexuality is evil.” The Romer decision, Scalia warned, presaged the “piecemeal deterioration of the sexual morality favored by a majority of Coloradans,” however slim that majority had become as gays moved into the mainstream of American society.

  Justice Scalia was correct in predicting that gays would try to build on the Romer decision to launch another legal attack on the Bowers case, which began in 1982 when a police officer opened a bedroom door in Atlanta and arrested Michael Hardwick for engaging in a homosexual act with another man. Sixteen years later, on September 17, 1998, a Houston, Texas, sheriff’s deputy opened an apartment door and arrested John Lawrence and Tyrone Garner for engaging in anal intercourse. Deputy Joseph Quinn had arrived at the apartment with his gun drawn after a neighbor—who had earlier been accused of harassing the two gay men—had called with a false report of a man “going crazy” with a gun. Lawrence, a medical technologist, and Garner, a street-stand barbecue vendor, were held overnight in jail and charged with violating a Texas law against “deviate sexual intercourse with another individual of the same sex.”

  After pleading “no contest” to the sodomy charges, Lawrence and Garner were fined $125 each, but they later filed an appeal in state court, arguing that the same-sex sodomy law violated both the Due Process and Equal Protection clauses of the state and federal constitutions. They won an initial victory in the case, but the state’s lawyers filed their own appeal and secured a reversal by the full appellate court. After the Texas Court of Criminal Appeals refused to review this decision, Lawrence and Garner asked the Supreme Court in July 2002 to hear the case, and the justices granted their petition.

  With the facts in Lawrence v. Texas virtually identical to those in Bowers, the justices confronted a direct challenge to its earlier ruling. Three facts, however, distinguished the two cases. First, the Georgia sodomy law applied both to straight and gay couples, while the Texas law applied only to homosexuals. Second, the repeal and judicial invalidation of sodomy laws since Bowers left Texas as only one of four states to outlaw same-sex sodomy. And third, unlike the Bowers case, Lawrence produced an outpouring of friend of the court briefs on both sides. More than a dozen Religious Right legal groups filed briefs supporting the Texas law, including Pat Robertson’s American Center for Law and Justice and Jerry Falwell’s Liberty Counsel. On the other side, groups from the ACLU to the American Bar Association, the American Psychological Association, and the American Public Health Association urged the Court to overrule Bowers.

  When the Court heard oral arguments on March 27, 2003, Paul M. Smith, who represented Lawrence and Garner, noted that lawyers for both Texas in Lawrence and Georgia in Bowers had conceded that “married couples can’t be regulated as a matter of substantive due process in their personal sexual expression in the home.” He quickly encountered the sharp tongue of Justice Scalia, who drew laughter in the chamber with his quick retort: “They conceded it. I haven’t conceded it.” Smith argued that sexual intimacy—for both straight and gay couples—should be equally recognized as a “fundamental right,” urging the justices to consider the fact that three quarters of the states had repealed their sodomy laws in recent years. Although his colleagues tolerated Scalia’s badgering and bantering with lawyers, they aimed their questions at the basic issue. “You are asking the Court to overrule Bowers against Hardwick,” Justice Ginsburg asked rhetorically. “Yes, Your Honor,” Smith replied, “we’re asking you to overrule it.”

  Houston’s district attorney, Charles A. Rosenthal, followed Smith at the lectern. It quickly became clear that Rosenthal was unprepared for the tough questions he faced from the bench. Several justices asked Rosenthal to identify the “rational basis” behind his state’s law, to which he responded by citing the “moral standards” of Texas voters. Justice Breyer grew impatient. “People in their own bedrooms have their right to do basically what they want, it’s not hurting other people,” he told Rosenthal. “All right, how do you respond to that?” Rosenthal replied that in Texas, homosexual conduct was “the lowest misdemeanor—the lowest prohibition that Texas has.” Breyer lost his patience. “That I didn’t bring into my question,” he replied. “So what is the justification for this statute, other than, I do not like thee, Dr. Fell, the reason why I cannot tell.” Ten minutes later, after Rosenthal had confessed ignorance on several issues of state law, Breyer polished him off. “You’ve not given a rational basis except to repeat the word ‘morality.’” Rosenthal had nothing left in his legal quiver, urging the justices as he left the lectern “not to disenfranchise twenty-three million Texans who ought to have the right to participate in questions having to do with moral issues.”

  Before a bench that included four former law professors—Ginsburg, Breyer, Kennedy, and Scalia—Rosenthal had displayed less knowledge of the facts and law in his case than almost any first-year student. But in fact he lost the case even before he began his argument. The same majority of six justices that struck down Colorado’s antigay amendment in Romer struck down the Texas homosexual sodomy law. As he had in Romer, Justice Kennedy wrote for the Court, in sweeping terms and soaring rhetoric. “Liberty protects the person from unwanted government intrusions into a dwelling or other private places,” he began. “In our tradition the state is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the state should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.”

  Kennedy followed these words by turning to the goal that gays had sought for the past seventeen years. “The central holding of Bowers has been brought in question by this case, and it should be addressed,” he wrote. “Its continuance as precedent demeans the lives of homosexual persons.” Noting that “the foundations of Bowers have sustained serious erosion from our recent decisions in Casey and Romer,” Kennedy also looked to “the values we share with a wider civilization.” He cited rulings of the European Court of Human Rights that had struck down antigay laws in England, Cyprus, and Ireland. “There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.” The bottom line was clear: “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.” Kennedy took pains, however, to add that the Lawrence ruling “does not involve” such other issues as same-sex marriage, anticipating the “slippery slope” objections of religious conservatives.

  For her part, Justice O’Connor was unwilling to overrule Bowers, in which she had joined the majority. She based her solitary concurrence in Lawrence on equal protection grounds. A law “banning ‘deviate sexual intercourse’ between consenting adults of the same sex, but not between consenting adults of different sexes is unconstitutional,” she concluded.

  As he had in his Romer dissent, in which he predicted the overruling of Bowers, Justice Scalia blamed the majority for its “massive di
sruption of the current social order” in Lawrence and for having “taken sides in the culture war.” Joined by Chief Justice Rehnquist and Justice Thomas, Scalia once again denounced the majority as elitist. “Today’s opinion is the product of a Court,” he wrote, “which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.” Scalia looked down the “slippery slope” that Kennedy had dismissed, accurately predicting that Lawrence would encourage gays to pursue their next goal, securing legal sanction for same-sex marriage. Sure enough, citing Lawrence for precedent, the Massachusetts Supreme Judicial Court ruled in November 2003 that its state constitution’s equal protection clause required that same-sex couples were entitled to marry in a state that had once made sodomy a capital offense. Gays and their supporters reacted with joy to this ruling, which the state legislature tried but failed to reverse, while religious conservatives responded with dismay. The Supreme Court may yet face new cases testing federal and state legislative efforts to ban same-sex marriages, presaging another round in the “culture war” that seems unlikely to end with any truce or treaty between the contending sides.

  Claims of “personal autonomy” have confronted the Court in recent years with hard cases that reach beyond contentious issues such as sexual intimacy to equally difficult questions of “fundamental rights” under the Constitution. Does the “liberty” interest protected by the Due Process clauses of the Fifth and Fourteenth amendments allow the ending of life before so-called natural death? And do these amendments allow the ending of life before “natural” childbirth? In bumper-sticker terms, does the Constitution protect both a “right to die” and a “right to life” against state infringement, or do these separate claims represent irreconcilable poles of the “clash of absolutes” that Harvard law professor Laurence Tribe titled a book about the abortion debate? The justices had addressed these issues in earlier cases, but new cases that involved physician-assisted suicide and so-called partial-birth abortion placed them back on the Court’s docket in 1997 and 2000, once again pitting Religious Right groups against their adversaries in the “culture war” that Justice Scalia seemed determined to wage in the Court’s chambers.

  The justices first dealt with the right-to-die issue in 1990, in a case from Missouri that involved the most excruciating question any family could face: whether to remove life-support systems of artificial hydration and nutrition from a family member who had suffered an accident that left her in a “persistent vegetative coma,” as doctors labeled the cessation of cognitive brain functions. Lester and Joyce Cruzan faced this dilemma in 1983, after their daughter, Nancy Beth, was in a serious car accident and apparently lay face down in a pool of water for several minutes, until paramedics found her “without detectable respiratory or cardiac function.” Although her breathing and heartbeat were restored, doctors found “no indications of significant cognitive function,” but kept Nancy alive with feeding and hydration tubes.

  After Nancy lay in a hospital bed in this state for several years, her parents asked doctors to remove her feeding tubes, but they refused, citing a Missouri law that required “clear and convincing” evidence that a person in Nancy’s state had indicated a desire to remove life-sustaining treatment. Her parents sued the hospital and the Missouri Department of Health, offering evidence that Nancy had told a friend that “she would not wish to continue her life unless she could live it at least halfway normally.” The trial court ruled in their favor, but the state supreme court reversed this decision, holding that Nancy’s statement to her friend did not meet the “clear and convincing” evidence standard.

  The case of Cruzan v. Missouri Department of Health reached the Supreme Court in 1990, and produced a five-to-four decision upholding the Missouri high court’s ruling. Writing for the majority, Chief Justice Rehnquist first conceded that “a competent person has a constitutionally protected interest in refusing unwanted medical treatment,” even if that refusal might hasten the patient’s death. But Nancy Cruzan was not competent to make this decision, and states could require a “higher evidentiary standard” for the “substituted judgment” of family members than her parents had met with her friend’s testimony. Justice Harry Blackmun, writing for the four Cruzan dissenters, felt that Nancy’s expressed desire was more important than the decisions of state officials who had “discarded evidence of her will, ignored her values, and deprived her of a right to a decision as closely approximating her choice as humanly possible.”

  Following this judicial rebuff, Nancy’s parents filed a new petition in state court, presenting testimony of three friends who said Nancy told them she would not want to live “like a vegetable.” Over protests from right-to-life groups, a state judge ruled that the Cruzans could have her feeding tubes removed, and Nancy died on December 26, 1990.

  Nancy Cruzan was clearly “incompetent” to make decisions about removing her life-support systems, but Rehnquist’s opinion in Cruzan just as clearly supported the right of “competent” patients to refuse unwanted medical treatment. But what if a competent person, suffering from a terminal illness, wanted to enlist the aid of a physician to end her life, and was either unwilling or unable to do so? That was the question the Court faced when it decided Washington v. Glucksberg in 1997. This case involved a challenge to a Washington state law that provided: “A person is guilty of promoting a suicide attempt when he knowingly causes or aids another person to attempt suicide.” Nearly all other states had similar laws banning “assisted suicide,” going back to colonial times. Physicians were bound by the Hippocratic Oath not to take any measures that would hasten a patient’s death, but many admitted they had administered lethal doses of drugs to end the lives of patients who were close to death and suffered excruciating pain. In the background of assisted-suicide cases, of course, lurked the more difficult question of euthanasia, or the “mercy killing” of incompetent persons, from badly deformed newborns to the elderly. Public opinion polls showed a strong majority opposed to euthanasia, but those who approved of physician-assisted suicide rose from 37 percent in 1947 to 67 percent in 1994. As was true for public tolerance of homosexuals, public opinion had shifted dramatically, but state laws had not reflected this change in sentiment.

  In 1994, along with several other physicians and their terminally ill patients, Dr. Harold Glucksberg challenged the Washington assisted-suicide law, relying on the Cruzan decision to argue for a “liberty” interest that protected the right of a “mentally competent, terminally ill adult to commit physician-assisted suicide.” Both a federal judge and the Ninth Circuit appellate court upheld their claim, and the Supreme Court granted the state’s petition to review those decisions. With the right to die now a heated political issue, more than sixty groups filed friend of the court briefs in the Glucksberg case, heavily weighted in Washington’s support, including the American Medical Association, which warned of a “slippery slope” that led from assisted suicide to euthanasia. A smaller number of right to die groups backed Glucksberg with arguments that forcing terminally ill persons to endure total disability or excruciating pain was cruel and inhumane.

  During oral arguments in January 1997, Washington’s assistant attorney general, William C. Williams, tried to distinguish the Cruzan decision, which had acknowledged a “liberty interest” in refusing unwanted medical treatment by arguing that it did not extend to affirmative steps to end one’s life. Williams asserted that Washington had a “compelling state interest” in protecting life, which could outweigh a liberty interest in the constitutional balance. The assisted-suicide question was an issue that properly belonged with state legislatures and not the courts, Williams concluded. Kathryn Tucker, a Seattle lawyer who argued for Dr. Glucksberg and his fellow doctors—their terminally ill patients had all died before the case was heard—disagre
ed with Williams on this point. “This Court,” she said, “has never left to the legislative process the protection of vital liberties, and the liberty at issue in this case is certainly of a vital and substantial nature.”

  Along with the Glucksberg case, the justices also heard arguments in a similar case from New York, Vacco v. Quill, in which the state’s attorney general, Anthony Vacco, was the lead defendant and argued on his own behalf. In addition to the liberty interests at stake in the Glucksberg case, Vacco raised an Equal Protection claim. Under New York law, terminally ill patients who wished to end their lives, but were physically incapable of shutting off life-support systems, could request a doctor’s assistance in doing so, but could not ask doctors to administer lethal drugs. Justice John Paul Stevens questioned this distinction. “In your view,” he asked Vacco, “could the New York legislature have decided in the cases of terminating life-support equipment, to totally forbid it for the same reasons that they totally forbid the assisted suicide?” Vacco first tried to sidestep the question. “I don’t believe the legislature could constitutionally prohibit the ability of a patient in the end stages of their life to refuse treatment,” he replied. Justice Scalia jumped in, suggesting that Vacco had sided with Dr. Glucksberg on this issue. “So you’re drawing the same line that was drawn in the last argument,” Scalia said, “that there’s something special about the last hours of death that creates a liberty interest.”

  Harvard law professor Laurence Tribe, who had argued and lost the gay rights case of Michael Hardwick in 1986, returned to the Court to speak for Dr. Quill and his patients. Tribe noted that New York law allowed doctors to shut down life-support systems for competent patients who requested that aid in ending their lives, but not to administer lethal drugs for the same purpose. Under Supreme Court doctrine, laws cannot make “irrational” distinctions that benefit one group and harm another in the same situation. “It is the distinction between these two different kinds of actions, the action that is requested of someone, ‘operate on me to take out the tube,’ and the action, ‘please give me a lethal prescription,’ that is irrational,” Tribe argued.