No, Human Rights Campaign, Sandra Day O'Connor Did Not Advance LGBT Civil Rights
Clarifying a Historical Record in Response to Those Conveniently Rewriting History
On Friday, Sandra Day O’Connor, the first woman to serve on the United States Supreme Court, passed away. Justice O’Connor was an inspiration to many and was a role model for many women, especially conservative feminists.1
She can be best remembered for her surprising opinions upholding affirmative action and campaign finance restrictions and striking down abortion restrictions, defying expectations as a conservative Justice appointed by Ronald Reagan.2 She desegregated the Mississippi University for Women Nursing School, constitutionally protecting men from discrimination who had previously been excluded from admission.3
Justice O’Connor’s inspirational life story stands out the most. Despite graduating at the top of her class at Stanford Law School, she could not initially get hired as an attorney, due to sexist barriers in the profession. Instead, she had to take a job as a legal secretary and persuade her employers to eventually let her practice law. And even once working as a lawyer, she faced more barriers as a mother.
Yet despite all that, she persevered and created her own path. The talented lawyer who once suffered the humiliation of having to accept a job as a legal secretary at the Santa Clara County Public Defender’s Office wound up on the Supreme Court. Her professional triumph in spite of sexist barriers serves as an inspiration to anyone - male or female - struggling to overcome any kind of adversity.
I would like to leave it there and say no more about Justice O’Connor. After all, one generally should not speak ill of the dead, especially when many are mourning her.
However, the Human Rights Campaign, a powerful Washington organization that purportedly advocates for LGBT Civil Rights, has compelled me to correct the historical record. That’s because on Friday, in mourning her loss, the organization that has currently proclaimed a “national emergency” for LGBT Americans tweeted their appreciation of Justice O’Connor for advancing LGBT Rights.4
While many question the factual premise of the “national emergency”, most seem to accept their premise that Justice O’Connor was a champion of LGBT Civil Rights. An Above the Law obituary described her as “the high court’s critical swing vote on issues like sex discrimination, abortion rights, gay rights, and affirmative action.”5
On Saturday, an openly gay Democratic Congressional candidate, who has emphasized his identity on the campaign trail, tweeted praise of what a great role model Justice O’Connor was. On Sunday, I was chatting with a very smart and well-informed conservative gay media personality who expressed his surprise that Justice O’Connor did not favor LGBT rights, having erroneously assumed she did.
This made me realize that the historical record requires clarification. Justice O’Connor can be remembered and credited for a great many things. But advancing LGBT rights is, unfortunately, not one of them.
In 1986, the Supreme Court decided Bowers v. Hardwick,6 a case involving two gay men arrested for having consensual sex in private under Georgia’s sodomy law.7 In a 5-4 decision, the Supreme Court held that the Constitution did not prohibit laws making oral and anal sex between consenting gay and lesbian adults in private illegal.8
The Court’s decision in Hardwick meant the government could criminalize gays and lesbians for their mere existence. Because while deciding that states could pass laws to punish gay and lesbian people for having sex, the Court technically took no position on the right of straight people to engage in consensual oral and anal sex in private.9 Hardwick confirmed that gays and lesbians were second class citizens, not entitled to any protection under the Constitution.
In Chief Justice Warren Burger’s separate concurrence in Hardwick, he wrote “there is no such thing as a fundamental right to commit homosexual sodomy.”10 He further added “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”11
Justice O’Connor joined the majority in Hardwick, literally casting a deciding vote in a 5-4 decision. While she didn’t join Chief Justice Burger’s concurrence, Justice O’Connor didn’t criticize it or voice her opposition. Though she could have.
Hardwick had devastating consequences for LGBT Americans.
First, decided during the height of the unchecked HIV/AIDS epidemic, Hardwick only worsened the epidemic. During the beginning of the HIV/AIDS epidemic, the government and many medical professionals largely ignored the disease because most of the victims were gay men. Many believed the disease was simply punishment for the immoral acts of gay men, acts which were still illegal in 25 states.12
Hardwick made it harder to fight the HIV/AIDS epidemic in a practical sense.
Doctors who wanted to discuss safe sex practices with gay men would be discussing how to conduct an act safely that was either criminal or that the United States Supreme Court had held the government could make criminal.
Public health officials attempting to educate the public on how to prevent HIV/AIDS were advising how to safely conduct an act that was either criminal or that the United States Supreme Court had held the government could make criminal.
Medical researchers working develop cures, medical prevention, and treatments were researching how to protect individuals from harm caused by an act that was either criminal or that the United States Supreme Court had held the government could make criminal.
Second, Hardwick had disastrous legal consequences for LGBT Americans fighting against sexual orientation discrimination in the courts. One might think that Hardwick had minimal impact because it dealt only with laws prohibiting sexual behavior.
However, court cases do not exist in isolation. And Hardwick definitely did not exist in isolation when it came to LGBT rights. In cases involving LGBT litigants facing discrimination, Hardwick drove the legal analysis.13
Citing Hardwick, Courts upheld:
The dishonorable discharges of men and women from the military solely for being gay or lesbian.14
The denial of national security clearances solely on the basis of being gay or lesbian.15
The firing of FBI and CIA agents solely on the basis of being gay or lesbian.16
Laws prohibiting gays and lesbians from adopting and fostering children.17
Family court decisions stripping away custody of children from a parent in a divorce case solely because that parent was gay or lesbian.18
Decisions of schools to terminate, not hire, or not promote teachers solely on account of being gay or lesbian.19
The best explanation for how Hardwick required these outcomes is from former 9th Circuit Court of Appeals Judge Stephen Reinhardt, long known as a liberal lion.
In a 1988 decision that reinstated a gay serviceman, Perry Watkins, who had been discharged from the army solely for being gay, Judge Reinhardt reluctantly dissented.20 He explained that while disgusted by the actions of the United States Army, Hardwick compelled a decision in favor of the government against Watkins.21
That is for the basic reason that it makes no sense to constitutionally require the government to treat a group of people equally when they could constitutionally lock the same group in jail for the very behavior that defined them as a group.22
Judge Reinhardt did not agree with the Supreme Court and rightfully criticized Hardwick as anti-gay and wrongly decided.23 Nevertheless, he was compelled to follow Hardwick.24 Ultimately, the full 9th Circuit Court withdrew the opinion and decided the case on a different ground.25 However, what was clear is that after Hardwick, the courts could not protect gay and lesbian citizens against discrimination.
Hardwick is among the worst decisions in the history of the United States Supreme Court. It is a black eye on par with Scott v. Sanford,26 Plessy v. Ferguson,27 Bradwell v. Illinois,28 Korematsu v. United States,29 and Dobbs v. Jackson Women’s Health Organization.30
The decision was an embarrassment to the judiciary and the legal profession. Any Justice who signed on to the majority decision in Hardwick, including Justice O’Connor, should live forever with the shame of having joined that decision.
At the end of his dissent in the Watkins case, Judge Reinhardt wrote the following:
Before concluding my discussion of Hardwick, I wish to record my own view of the opinion. I have delayed doing so until I have applied the case as I believe we have a duty to apply it. Now, I must add that as I understand our Constitution, a state simply has no business treating any group of persons as the State of Georgia and other states with sodomy statutes treat homosexuals. In my opinion, invidious discrimination against a group of persons with immutable characteristics can never be justified on the grounds of society’s moral disapproval. No lesson regarding the meaning of our Constitution could be more important for us as a nation to learn. I believe that the Supreme Court egregiously misinterpreted the Constitution in Hardwick. In my view, Hardwick improperly condones official bias and prejudice against homosexuals, and authorizes the criminalization of conduct that is an essential part of the intimate sexual life of our many homosexual citizens, a group that has historically been the victim of unfair and irrational treatment. I believe that history will view Hardwick much as it views Plessy v. Ferguson, 163 U.S. 537, 41 L. Ed. 256, 16 S. Ct. 1138 (1896). And I am confident that, in the long run, Hardwick, like Plessy, will be overruled by a wiser and more enlightened Court. See Hardwick, 106 S. Ct. at 2856 (Blackmun, J., dissenting).31
Judge Reinhardt was prescient in his prediction.32
In 2003, the United States Supreme Court reversed and repudiated Hardwick in Lawrence v. Texas.33
Justice O’Connor was still serving on the Court when Lawrence was decided. She had the opportunity to correct her mistake. It would not make up for the immense suffering and harm caused by Hardwick but would have at least shown some humility.
However, Justice O’Connor declined, writing an incomprehensible concurrence in the judgment that argued the law in question was unconstitutional but that Hardwick shouldn’t be reversed.34 Although I disagreed with his conclusions in Lawrence, I think Justice Antonin Scalia was correct to call out her arguments as total nonsense.35
Just like Judge Reinhardt asked, how can one say that one has no constitutional right to engage in the very action that defines them as a status while also holding that the Constitution protects that very group against discrimination? Just the law itself is discriminatory against gays and lesbians even if it treats everyone equally on paper.36
Justice O’Connor’s views in Lawrence are also highly convenient. Because while gay and lesbian Americans suffered for 17 years under Hardwick, Justice O’Connor never once argued that Hardwick was being misconstrued and that anti-gay discrimination was impermissible.
She had plenty of opportunities. When cases of gay and lesbian litigants who had been discriminated against came to the Supreme Court, she could have voted to hear the cases.37 She could have dissented from cases denying review, arguing that the Constitution allows states to ban certain types of sex it finds icky but that it cannot discriminate on the basis of sexual orientation.
But she never did.
In fact, in her Lawrence concurrence itself, she went out of her way to stress the validity of same-sex marriage bans.38
It should also be noted that while Lawrence was a significant victory for the LGBT community, it didn’t undo the damage of the previous 17 years.
Sometimes, I wonder whatever happened to the woman whose dreams of becoming an FBI agent were dashed because she was discovered to be a lesbian upon graduating from the FBI Academy at the top of her class. Lawrence didn’t give her back a career she should have had.
Moreover, Lawrence did not change the impact of what Hardwick had wrought upon gays and lesbians in the legal system.
Recall those cases that had relied upon Hardwick to uphold the constitutionality of discrimination against gays and lesbians?
Those cases were not overturned just because Hardwick was. They remain in effect and continued to be cited as precedent to uphold laws and policies that discriminated against LGBT Americans well after Lawrence was decided.39 Courts continued to hold that the government could discriminate against gays and lesbians with no justification, relying on past precedents decided while Hardwick remained good law.40
Now, some might dismiss Justice O’Connor’s decision in Hardwick as perhaps a product of her time and excuse her actions because she was a Republican. However, this argument falls flat.
Just a year later in 1987, the California Supreme Court, in Vinson v. Superior Court, quietly repudiated Hardwick, holding that the constitutional right to privacy protects the right to sex between all consulting adults in private.41 The opinion was unanimous and nowhere references or mentions Hardwick, almost serving as a middle finger to the United States Supreme Court.
Five of the Justices on the California Supreme Court at the time were Republican appointed conservatives. Whatever their personal moral preferences, they understood that the Constitution protected the right of consenting adults to have sex in private regardless of their sexual orientation. If these conservative Republican appointed Justices understood that, certainly Justice O’Connor could have.
A contemporaneous non-judicial example might be noted as well. In 1984, California State Senator Ed Davis, shocked his colleagues by announcing that he would support a gay rights bill in the Legislature. The former LAPD Chief was no moderate. He was a law and order conservative who represented a very safe Republican and very conservative State Senate district.
As LAPD Chief in the 1970’s, he had once espoused homophobic views. But by 1984, he had evolved. His courageous stand subjected him to abuse from some of his Republican colleagues and it could have cost him re-election (he was subsequently re-elected though his newfound pro-gay rights stand probably did not help him when he sought and lost the United States Senate nomination in 1986).
Had Justice O’Connor ruled correctly in Hardwick, she faced far less potential cost than Ed Davis did for supporting gay rights legislation. Justice O’Connor would not have lost her job or faced any harassment from her fellow Justices. Moreover, ruling correctly in Hardwick did not require her to take a political stand. It merely required her to do her job and uphold the Constitution.
One might think her decision in Hardwick was a one-off and should not be used to tarnish her entire record on gay rights. After all, one of the greatest United States Supreme Court Justices, William O. Douglas, had joined the majority in decisions upholding the constitutionality of the Japanese Internment.
However, Justice Douglas, who never had the opportunity to reverse Korematsu as Justice O’Connor had with Hardwick, more than made up for it during his long tenure on the Court, joining nearly all of the seminal cases that advanced racial equality. He also authored many of the seminal cases that brought down racial discrimination.
Justice O’Connor has no such similar record. While she joined the majority opinion in Romer v. Evans,42 which struck down a Colorado law that repealed all local laws banning homophobic and transphobic discrimination and prohibited the enactment of new ones as a violation of the Equal Protection Clause, her vote did not impact the outcome.43 Moreover, the case’s impact was relatively limited.44
Otherwise, post Hardwick, she demonstrated only disregard for the LGBT community. She joined in a 5-4 opinion holding that the Boy Scouts of America had a First Amendment right to kick out a gay scoutmaster solely because of his sexual orientation that the anti-discrimination laws of his state otherwise made illegal.45
In 1992, the Supreme Court took up the case of a gay veteran and otherwise law-abiding citizen who the United States government had preyed upon and entrapped into purchasing illegal pornographic content he otherwise had no interest in purchasing.46 In a 5-4 decision, the Supreme Court reversed his conviction.47
Justice O’Connor angrily dissented.48 Incredibly, the author of that decision was Justice Byron White, who had authored Hardwick. Justice Clarence Thomas, who is no friend to LGBT Americans, joined the majority opinion. Even Justice White and Justice Thomas protected a gay criminal defendant from an inherently unfair prosecution while Justice O’Connor did not.49
With all this said, I don’t write this article as an attack against Justice O’Connor. I’m not celebrating her death (as some ghoulish writers are wont to do over political figures they dislike).
People have to be judged holistically with an understanding that all human beings have flaws. One could be great overall while still having committed wrongs during their lifetime. Even the greatest Justices make mistakes.
Earl Warren was one of the greatest Chief Justices in the history of the United States. Yet, in 1967, when the United States Supreme Court held that a gay immigrant could be deported because all gay people were “psychopaths”, Earl Warren joined the majority opinion.50
Was he wrong? Absolutely.
Does it change my views of him as a great Justice who is responsible for advancing our legal system of justice? No.51
I will not be joining mobs of lunatics tearing down statues of Justice O’Connor any more readily than I would have joined the ignoramuses who tore down one of Ulysses S. Grant and persuaded the San Francisco School Board to remove Abraham Lincoln’s name from a school (both done in the name of “racial justice”).
By analogy, I’ve always admired many of the founding fathers, including those who owned slaves. I can view George Washington as one of the greatest men in recorded human history. I can also acknowledge that he owned slaves, which was wrong.
I think Thomas Jefferson was one of our greatest founding fathers, whose legacy I remain grateful for. However, I can acknowledge his wrongful owning of slaves and engaging in an almost certainly non-consensual extra marital relationship with a slave.
Similarly, while I can honor Justice O’Connor for the admirable things she accomplished in her life and express condolences over her loss, I cannot engage in a rewriting of history that paints her as something she most certainly wasn’t.
Just like I do not credit George Washington or Thomas Jefferson as champions of racial equality or valuing black lives, I will not be crediting Sandra Day O’Connor as a champion of LGBT Civil Rights.
The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author’s scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.