Courting Justice: Gay Men And Lesbians V. The Supreme Court

If this meticulously documented and compellingly narrated chronicle of the gay-related cases before the nation's highest court over the past fifty-odd years were even half as good as it is--or, ideally, half as long--it would still be terrific. Lending heft to the notion that the couple that investigates together domesticates together, veteran D.C. journalists Joyce Murdoch and Deb Price, life partners since 1985, have composed the gay bookend to Bob Woodward's The Brethren--with all the epic sweep, painstaking research and intimate storytelling of such nonfiction classics as And the Band Played On and Common Ground. Two cases here provide the book's anchors: 1986's Bowers v. Hardwick, which upheld Georgia's law against homosexual sodomy and provided an astonishingly hostile climax to two decades of high-court homophobia, and 1992's ruling that found unconstitutional Colorado's ban on equal protection of any sort for gays--the Court's greatest and most respectful affirmation of gay rights, if not much of a promise that the court would rule with equal sensitivity on future gay-related cases.

Beyond those two seminal rulings, Murdoch and Price cover what seems like, and may well be, every gay-oriented case to so much as petition the Court since the Eisenhower years. That comprehensiveness can become a little exhausting, amounting as it does largely to a dispiriting archive of the myriad ways the Court has found of blithely dismissing or even scoffing at the basic rights of gay Americans. Drawing on everything from scrawled notes in the justices' personal archives to in-depth interviews with the justices' former clerks, Murdoch and Price provide a fascinating window into how each justice's individual experience and temperament--not to mention the intricate, ever shifting power plays among them--influenced his or her decisions. The most heart-wrenching, haunting portrait is of Justice Lewis Powell, by the 1980s an frail, aging Southern gentleman who had an uncanny knack for hiring gay clerks yet claimed he'd never met a homosexual. He made a valiant but failed effort to understand gays, and ultimately changed his mind at the last minute to cast the damning, deciding vote in Bowers--an about-face he fretted over up until his death. Rehnquist and Scalia clearly emerge here as the homophobic bullies, with Thomas as their silent yes man, O'Connor as spinelessly concerned with voting in the majority, and Ginsburg, Stevens, Souter and sometimes Kennedy as the usual pro-gay "count-on" votes. Undeniably, Brennan, Marshall, and Blackmun (who wrote Bowers's stirring dissent) are portrayed as the heroes on the bench.

But the real heroes here are in the pageant of gay men and lesbians who took their demands for justice to the nation's highest court, many in an era when it was considered absurd to think they had any rights at all in an America that saw them as child molesters, psychopaths, or--at best--pitifully "afflicted with homosexuality." Very few of them were vindicated, and many more lost nearly everything--their jobs, homes, income, privacy, reputation, and sometimes children--for the fight they waged. Their diversely fascinating stories are told here, in a volume whose ultimate triumph is the emotional punch it packs. I kept thinking of Dorothy and her friends petitioning the Wizard: Their firm belief that he would do right by them, their fear and awe before his mysterious majesty, their rage and grief when he welshed on his promise, and, finally, their astonishment to learn that the great and mighty Oz, who had the last say in the highest tribunal in the land, was really just a man, with the same capacity for both ignorance and enlightenment as the rest of us. --Timothy Murphy