Nancy Polikoff

The lesson from Justice Souter

Filed By Nancy Polikoff | May 05, 2009 10:30 AM | comments

Filed in: Politics
Tags: David Souter, gay adoption, Lawrence v. Texas, New Hampshire, Romers v. Evans

We love him now. After voting with us on the right to equal protection (Romer v. Evans) and the unconstitutionality of sodomy laws (Lawrence v. Texas), we know that Justice David Souter is on our side. So we see him leave the Supreme Court with some sadness.

It wasn't always so.

In 1987, as a justice on the New Hampshire Supreme Court, Souter joined a majority opinion ruling that the state's new ban on adoption and foster parenting by "homosexuals" was constitutional. In a case known as Opinion of the Justices (because the court gave its opinion without a challenge from an individual litigant), the court said that the legislature could conclude that having a gay foster or adoptive parent could make a child gay! The court rejected all the evidence to the contrary and did not even bother to say why, even if it was true, it would be a bad thing. (The court did overturn a ban on operating child care facilities. Yes, that's right. The New Hampshire legislature voted in 1987 to keep gay people from operating child care facilities.)

The lesson? People can change. Not likely the people put on the Supreme Court these days. Souter didn't turn out to be the conservative he was expected to be. So the vetting changed. I'm not counting on as much as a budge out of Alito or Roberts.

But I think of my father. Horrified when I came out to him in the 1970's, by the time he died in 1998 he had spent at least a decade sending me the latest NY Times clippings on gay and lesbian families. I still remember the first time he used the word "lesbian" in casual conversation, as though it was just another word.

I don't know what caused Souter's shift. Maybe someday we'll learn he had gay friends, acquaintances, family, even law clerks. But I know I am grateful for his votes on our side, and I have no doubt that if the constitutionality of a ban on gay adoption (that's you, Florida) were before him today he would make a decision different from the one he made in 1987.

Then again...if he had ruled with us in 1987 he never would have been appointed to the Supreme Court.

And New Hampshire repealed its ban on gay adoption in 1999.

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Ah, New Hampshire. Live free or die....or is it, live free and die? Depends on whether you wear your motorcycle helmet, even when the state doesn't require it. David Souter strikes me as a perfect reflection of his home state: looks kinda right-wing, but he never closed his mind to solid arguments, evidence and personal stories that might change it. Who'da thunk that NH legislators would become the third state lawmaking body in the nation to pass a marriage reform bill? Now, on to Gov. John Lynch following the reconciliation conference to square up the two versions of the bill. Lynch, a Democrat, would do well to catch a clue from Justice Souter: never close your mind to the idea that you might be wrong.

I just hope we don't end up screwed by a "liberal" appointee that's more centrist than liberal so Obama can get issues like health care, etc passed without having to focus on a Senate fight for confirmation of his nominee. It worries me that he might appease the Republicans in favor of his other priorities.

Bil, I have the same concerns.

A small reminder... the NH senate just voted 24-0 against granting the same human rights to Trans people that they do to gays.

Just thought I'd mention that. Consider it mentioned, and I'll shut up now.