The Gay Rights Legacy of Justice John Paul Stevens

Parting is such sweet sorrow. Especially when the person doing the parting is a powerful advocate for equal rights.

Such is the case with Supreme Court Justice John Paul Stevens, who announced today that he would be retiring from the Court this summer. His departure gives President Barack Obama another opportunity to nominate someone for the Supreme Court. Whoever that person ends up being, they are going to have a huge pair of tennis shoes to fill. (Yes, at age 89, John Paul Stevens is still a regular on the tennis court. We should all have such physical stamina during our ninth decade.)

As we've written about before, there's definitely a chance for President Obama to make another historic Supreme Court appointment in this vacancy — appointing the first gay or lesbian judge. The quality candidates are there. All that's needed next is the political courage to make the nomination.

But as the coming days turn into swirls of speculation over who Obama might tap to replace Stevens, it's important to take a moment to reflect back on the legacy of John Paul Stevens. And while Stevens is a major force to be reckoned with when it comes to subjects like terrorism (writing the opinion that slammed the Bush administration's detainee detention policy), or voting rights (Stevens was vocal in his dissent in Bush v. Gore), he was also well known for his decisions in the gay rights arena. Here's a look back at some of the historic cases that Stevens helped frame in the fight for equal rights.

Perhaps the biggest impact of Justice Stevens, at least regarding LGBT equality, was framed in his dissent in the 1986 case Bowers v. Hardwick. Though Stevens was on the losing side of that case, which upheld a state's right to criminalize sodomy, Stevens issued a stinging dissent that would foreshadow where the court (and the country) would eventually head on the issue. Stevens wrote, "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice."

The power of that statement, at least is a legal sense, is chilling. It means that no matter what a majority thinks about homosexuality, that same majority doesn't have the right to trample on an individual's civil liberties. Stevens' words would later be used in Lawrence v. Texas, the court case that overturned bans on sodomy in 2003. And who knows — those same words might eventually be used in an opinion from the Supreme Court striking down same-sex marriage bans.

Beyond just Bowers and Lawrence, Stevens' role on the court helped shape other important decisions affecting gay rights. Stevens signed onto the majority opinion in Romer v. Evans, the case that overturned a Colorado law that prevented cities, towns and municipalities from enacting anti-discrimination ordinances protecting people on the basis of sexual orientation and/or gender identity.

And Stevens also wrote the dissenting opinion in one of the first gay rights cases of this past decade — Boy Scouts of America v. Dale, the case that challenged the Boy Scouts' blanket ban on gay and lesbian scout leaders. In this case, though again Stevens was on the losing side, he passionately made the argument that organizations like the Boy Scouts of America contradict their own values when they discriminate against gays and lesbians. He cited the Boy Scouts' principle of trying to foster morally straight and clean young adults.

"It is plain as the light of day that neither one of these principles — 'morally straight' and 'clean' — says the slightest thing about homosexuality. Indeed, neither term in the Boy Scouts' Law and Oath expresses any position whatsoever on sexual matters," Stevens said at the time. Yes, America, gay folks too can be morally straight and clean, Stevens essentially said.

At nearly 90-years-old, Stevens probably feels that it's a good time to head for greener pastures. It's totally understandable, but it's also a bit tragic, given that right now there are at least three lawsuits brewing in the federal court system that may eventually make their way to the U.S. Supreme Court.

The first is the well-known Perry v. Schwarzenegger, the case led by Ted Olson and David Boies challenging California's law banning gay marriage, otherwise known as Prop 8.

The second is Gill et al. v. Office of Personnel Management et al., which is the Massachusetts court case challenging the federal Defense of Marriage Act, which prevents the federal government from recognizing same-sex relationships.

The third is the Login Cabin Republicans v. the United States of America, the federal lawsuit itching to overturn the U.S. military's "Don't Ask, Don't Tell" policy that discriminates against openly gay, lesbian and bisexual troops.

Three important cases. But if they end up before the U.S. Supreme Court someday, Justice John Paul Stevens won't be weighing in. That's tragic, given Stevens' legacy of being a judicial voice for equality.

But to pivot, it's also a major opportunity for President Barack Obama to nominate someone who will continue Stevens' legacy on the court. Honorable. Admired by the right and left. But principled in his stand that law should lift us up, rather than take us down. Those were the characteristics that made Justice John Paul Stevens so revered.

And those are the same qualities that should guide Obama as he seeks someone to fill Stevens' shoes.

Photo credit: Obama-Biden Transition Project