On Tuesday, retired Supreme Court Justice Sandra Day O’Connor officiated a same-sex marriage at the Supreme Court, the first gay wedding to take place in the court’s halls. (It wasn’t the first officiated by a justice, though; Ruth Bader Ginsburg beat O’Connor to that honor.) The event serves as a heartwarming confirmation that O’Connor’s shift to the left has continued through retirement—but it’s also a poignant reminder that the justice’s early retirement cut short what might have been an evolution from Reagan conservative to gay-rights luminary.
O’Connor’s jurisprudence wasn’t always so friendly to gays, of course. In 1986, O’Connor joined Justice Byron White’s five-member majority in Bowers v. Hardwick, the court’s first gay-rights case. Confronted with the constitutionality of Georgia’s anti-sodomy law, White infamously declared that a constitutional right to gay intimacy is “at best, facetious.” In dissent, Justice Harry Blackmun chastised the majority for its “almost obsessive focus on homosexual activity”—but with O’Connor on board, the court had its five votes, and sodomy laws survived.
Yet just 10 years later, O’Connor performed a somewhat unexpected about face in Romer v. Evans. Romer dealt with a Colorado constitutional amendment forbidding local governments from enacting nondiscrimination statutes designed to protect gay people. Many gay-rights groups anticipated defeat after O’Connor, by then a frequent swing vote, remained alternately quiet and cagey during oral arguments. (Her most substantive questions pertained to the amendment’s breadth.) Court watchers were surprised, then, when O’Connor joined Justice Anthony Kennedy and four liberals to declare that the amendment was “a denial of equal protection of the laws in the most literal sense”—the first time the court had ever extended constitutional protections to gays.
This was not the O’Connor of the Bowers court. But even after Romer, Bowers remained on the books—until the blockbuster case of Lawrence v. Texas. Lawrence, like Bowers, dealt with an anti-sodomy statute. But unlike the law in Bowers, the Texas statute challenged in Lawrence specifically targeted “homosexual conduct,” while leaving heterosexual sodomy perfectly legal. Once again, Kennedy took the lead in Lawrence, penning an eloquent (if occasionally orotund) encomium to human intimacy that directly overruled Bowers. O’Connor, too, voted to overturn the Texas statute—but she refused to join Kennedy’s opinion overruling Bowers and thereby tacitly revoking her Bowers vote. Instead, O’Connor held that an exclusively anti-gay sodomy ban violated the Equal Protection Clause by “mak[ing] homosexuals unequal in the eyes of the law.”
In one sense, the distinction represented an irksome refusal by the justice to concede her Bowers mistake. But ironically, O’Connor’s opinion also laid the groundwork for an alternate gay-rights jurisprudence—one conceivably stronger than that laid out by Justice Kennedy. Kennedy sees gay rights primarily as a Due Process issue: The Due Process Clause of the Fifth and 14th Amendments guarantees all people “life, liberty, and property,” and Kennedy has held, most recently in U.S. v. Windsor, that the “injury and indignity” inflicted by certain anti-gay statutes are “a deprivation of an essential part of ... liberty.”
Those are strong words, and thus far, they’ve provided satisfactory results. But “equal protection of the laws” is a firmer mandate—with sharper teeth. Had O’Connor remained on the court for long enough to confront the next round of gay-rights cases, she might have had time to hone her analysis, to develop her jurisprudence so that gays must be afforded the same constitutional protections as women or blacks. Instead, her retirement subtracted one pro-gay vote and added a rudely anti-gay one, ushering in an era of nail-baiting 5-4 gay-rights opinions. It’s impossible to know whether O’Connor’s gay-rights jurisprudence would have evolved so quickly had she remained on the bench. But it’s also difficult not to pine for a different version of the story, one that ends with O’Connor overcoming her Bowers error to emerge as the court’s true champion of equality.