May 6, 2009 at 1:00 am

Deb Price

Souter proves a gay rights surprise

When David Souter was nominated to the Supreme Court in 1990, gay-rights groups quickly lined up to oppose him: Three years earlier, as a state judge he had signed onto an advisory opinion saying nothing prevented New Hampshire from banning gay adoption.

But once on the court, Souter stepped into the shoes of civil rights giant William Brennan and quietly grew into them. What a joyful surprise Souter's nearly two-decade run turned out to be.

Using his intellectual gifts and good heart, Souter helped produce a warming trend, enabling the court to begin moving away from four decades of icy treatment of gay men and lesbians.

Thanks to Souter, the court turned a major corner in 1995, when a unanimous opinion that he wrote for the court finally used the respectful term "gay."

Souter's ruling also spoke respectfully of Massachusetts' gay-rights law, igniting the hope that major breakthroughs would come soon.

The first--Romer v. Evans--came the very next year. Souter voted with the majority in ruling gay Americans have a right to equal protection of the laws. He also voted with the majority in the landmark Lawrence v. Texas decision, which in 2003 declared gay Americans have a right to sexual privacy.

In between, Souter wrote a gay-friendly dissent to the 2000 ruling allowing the Boy Scouts to ban gay scoutmasters. And, in a 1998 signal that the court was not undercutting Romer, Souter signed onto an unusual statement by Justice John Paul Stevens stressing that the court's refusal to hear a challenge to a sweeping anti-gay amendment in Cincinnati "is not a ruling on the merits."

Within his own chambers, as my co-author Joyce Murdoch and I documented in "Courting Justice: Gay Men and Lesbians v. the Supreme Court," Souter reacted respectfully when one of his law clerks came out. Souter hired another clerk who was a gay-rights scholar.

Souter, appointed by a Republican president, added a parting gift: By choosing to retire when a gay-supportive Democrat will pick his successor, he likely ensured the court will continue its trend toward reading gay rights into the Constitution's promises of equality.

Obama offered a hint at what Souter's replacement may look like when he said two years ago that he'd appoint justices with the "empathy to recognize what it's like to be a young, teenaged mom ... to be poor or African-American or gay or disabled or old."

More recently, Obama vowed to "seek someone who understands that justice" affects whether people feel "welcome in their own nation."

That kind of Souter replacement would maintain what's now believed to be a 5-4 split in favor of basic gay rights. She -- or he -- will join the court's progressive wing amid a sea change in public attitudes and legal rights for those of us who are gay.

Knowledge of that "real world" could prove helpful: Unless Congress finally addresses two pressing injustices, the court might hear challenges in the next few years to the bans on openly gay soldiers and on federal benefits for same-sex married couples, notes gay law scholar Arthur Leonard.

Souter's replacement hopefully will feel a special kinship to him, as he did to Brennan.

Even when ruling against a specific gay group in 1995 -- declaring that forcing organizers of Boston's St. Patrick's Day parade to let an Irish-American gay group participate would violate the First Amendment -- Souter was careful not to suggest the court agreed with anti-gay prejudices.

Thank you, Justice Souter, for making gay Americans feel more welcome in our own nation."> (202) 662-8736