Posted Jun 10, 2013 06:08 pm CDT
Justice Lewis F. Powell Jr. told colleagues in 1986 that he had never met a homosexual, though one of his clerks that term was gay.
In fact, Powell was the justice most likely to hire gay clerks at the time, according to a book published in 2001 that chronicled gay rights cases at the court. For six consecutive terms in the 1980s, at least one of Powell’s law clerks was gay, according to the authors, Joyce Murdoch and Deb Price. The New York Times reported on that finding and spoke to two gay men who clerked for Powell between 1984 and 1986.
Powell had voted with the majority in 1986 in the 5-4 decision Bowers v. Hardwick, which upheld a law criminalizing sodomy. He made the remark as he struggled with his vote.
C. Cabell Chinnis told the Times that Powell must have known of his sexual orientation when he clerked for him before the Bowers decision. Powell had met his boyfriend, Chinnis said, and had asked him about the mechanics of gay sex. Chinnis speculates that his boss made the comment to protect Chinnis at a time when it was professionally dangerous to be identified as gay.
At the time, the Times says, there had never been an openly gay law clerk at the Supreme Court, and it was professionally dangerous to be identified as gay. Bowers was overturned in 2003, when openly gay clerks were more common.
“These days,” the Times says, “justices are more likely to work and socialize with openly gay people than most Americans are. That is partly because 10 percent of adults who live in the District of Columbia say they are gay, lesbian, bisexual or transgender, according to a February Gallup poll. That is a much higher percentage than in any state. Law schools and the legal profession have, moreover, been particularly welcoming to gays and lesbians.”