COURTING JUSTICE: GAY MEN AND LESBIANS V. THE SUPREME COURT by Joyce Murdoch and Deb Price. New York: Basic Books, 2001. 582 pp. Cloth $32.50. ISBN: 0-465-01513-1.

Reviewed by Rebecca Mae Salokar, Department of Political Science, Florida International University.

A careful reader might have seen the connection between two stories that THE MIAMI HERALD ran on July 21, 2001; a lesbian or gay reader would have not only made the connection but would have chalked the stories up to the illogical legal development of gay rights in Florida and across the nation. On the front page of the local section was news that the State of Florida had initiated proceedings to remove a 10-year-old child from the care of a gay foster parent, the only home the child has known since he was two months old. Steven Lofton, approved by the state as a foster parent but statutorily banned from adopting the youngster, had filed suit in federal court to overturn the Florida law that prohibits homosexuals from adopting children. Also, as if in retribution for the legal challenge, Florida's Department of Children and Families notified Lofton that it intended to "proceed with recruiting a family" and refused to guarantee that the child would remain with him pending the outcome of the litigation (Nieves 2001).

Had the editors of THE MIAMI HERALD been a little more adept at story placement, they might have moved a second story to the column adjoining the Lofton report. On page five it was reported that this same government, the State of Florida, had recognized the 10-year lesbian relationship of Tampa Police Officer Lois Marrero, who had been killed in the line of duty, by sending her surviving "spouse" a $25,000 payment from the state's crime victims' compensation fund. Approved by Florida's Attorney General, a Deputy Attorney General was quoted as saying, "We've always done it and the circumstances here are no different. I believe it was the right thing to do." And because of the publicity of Officer Marrero's relationship, the City of Tampa is now reviewing its employees' benefits policies with respect to same-sex relationships ("State gives..." 2001).

Lesbian, gay, bisexual and transgendered people, their families, and their friends know well the uneven application of the law in our federal system of separated powers. If COURTING JUSTICE: GAY MEN AND LESBIANS V. THE SUPREME COURT reaches the larger public audience for which it is intended, then perhaps more people will be educated in the inconsistencies of justice afforded to gay residents and citizens of the United States. Undoubtedly, enlightenment is one of the goals of authors Joyce Murdoch (managing editor for politics of THE NATIONAL JOURNAL and former editor and reporter at THE WASHINGTON POST) and Deb Price (columnist for THE DETROIT NEWS). However, COURTING JUSTICE reaches beyond the gay rights theme by exposing the human side of the law and by providing us with yet another view of the inner workings of the U. S. Supreme Court.

COURTING JUSTICE is a comprehensive historical documentary of gay rights issues that have reached the United States Supreme Court. Starting with the decision in "ONE," INC. v. OLESEN (1958) (where the Court ruled that a homosexual magazine was not obscene), the authors examine cases that run the gamut from sodomy prosecutions and immigration rules banning homosexuals, to employment discrimination and the "witch-hunts" of the United States military to rid itself of lesbian and gay service members. The book concludes with the recent decision in BOY SCOUTS OF AMERICA v. DALE (2000), where the Court recognized the Scouts' claim to the First Amendment's right of association as a valid justification for discrimination against gay men and boys.

Bringing their journalistic talents to bear, Murdoch and Price tell the stories of more than five dozen cases that have reached our highest court-from those decided fully on the merits with briefs and argument to those settled by a denial of certiorari by the justices of the Supreme Court. They do it in the fine research tradition established by Woodward and Armstrong's THE BRETHREN (1979) meshed with the conviction of purpose and attention to detail evident in Randy Shilts' works on the politics of AIDS (1987) and the persecution of gays in the U. S. military (1993). This combination results in a powerful work that is a must-read for scholars interested in the Supreme Court, in civil rights generally, and in gay rights, specifically.

The range of sources tapped by Murdoch and Price is extensive. Besides mining generally accessible public material like court decisions and documents filed in each case through each level of litigation as well as the recorded oral arguments at the Supreme Court, they combed the papers of at least 12 former justices, the case files maintained at the Supreme Court's Library and other judicial records maintained at the National Archives. They also conducted interviews with court staff, 103 former clerks (they found 22 who were gay), and attorneys who argued the cases highlighted in the book. Finally, the authors tried to contact the litigants, where possible, and interviewed them as well as some family members of now-deceased justices.

The richness of COURTING JUSTICE is found in the manner that Murdoch and Price take each case and place it in the social and political context of the times. For example, "ONE," INC. v. OLESEN and KAMENY v. BRUCKER (1961) arise in the tenuous times of McCarthyism and the Red Scare where the federal government worked to suppress homosexual conduct and to eliminate suspected homosexuals from civil service jobs (Chapters 1 and 2). A lasting effect from 1952 was Congress' use of the term "psychopathic personality," which fed into a campaign of legal oppression long after medical professionals had abandoned their negative diagnoses of gays and lesbians. Thus, the Immigration and Naturalization Service with the Supreme Court's explicit support determined that homosexuals were deportable and/or excludable from the United States well into the 1980s in some of the most absurd of circumstances (Chapters 4, 5 and 9). COURTING JUSTICE also reveals the human costs of the Court's decisions on the merits and in cases where certiorari was denied to a gay petitioner: a Harvard Ph. D. astronomer discharged from a promising civil service career, proven teachers and counselors cast from the classroom, longtime residents of the United States who were deported for being gay only or refused citizenship despite their contributions to this country, and stellar military careers cut short.

Some of the stories mined from the justices papers and from the clerk's recollections will be retold time and again, and will provide grist to an undergraduate lecture on the Court, as, for example, the somewhat off-color poem penned by Justice Abe Fortas for Justice William O. Douglas (p. 126). Also revealed is the fact that Justice Stephen Breyer's work focus is so intense that he was unaware that a caged mouse was placed in his office (p. 427) or that a goldfish was swimming in his water cooler (p. 23). Or imagine Justice Lewis Powell enjoying peanut butter crackers and half a beer wrapped in a paper bag in one of the inner courtyards of the Court on Saturdays (p. 272). Suggestions that Justice Frank Murphy was gay are also explored (pp. 18-21).

However, beyond the "peeping tom" stories are told the agonies and strategies of the individual justices in deciding some of the more delicate issues of the day. Chapters 11 and 12 are devoted to the BOWERS v. HARDWICK (1986) case and would be excellent complements for any undergraduate constitutional law course that focuses on civil rights and liberties or Supreme Court decision making. The story of Justice Powell's initial vote in conference to strike down the Georgia sodomy law and his shift at the urging of his clerk and the Chief Justice tell of the fragility of 5-4 decisions. The success of the gay rights movement in striking down Colorado's Amendment 2 in ROMER v. EVANS (1996) is told in Chapter 16, and is followed in the final chapter by the story of the frustrating loss for the movement in the BOY SCOUTS case (2000). Both readings would also be fitting for an undergraduate class.

A major weakness of COURTING JUSTICE is its length. Although packed with titillating tidbits on the Court that will be enjoyed by judicial scholars, at 530 pages of text spread across 17 chapters with an introduction and conclusion, the book is almost unwieldy. Decisions to deny certiorari can be important for the Court (Perry 1991) and most certainly carry consequences for the litigants; however, including the human interest details of so many cases that fizzled on the Court's docket seems not to add much to the historical picture painted by Murdoch and Price. Also, most of the retrospectives by relatives of former justices do little to bolster our understanding of the justices' personal attitudes on homosexuality. Ultimately, the book's length does not make it terribly useful for faculty looking for a supplemental text in an undergraduate course. As suggested earlier, assigning specific chapters would best complement civil rights and liberties classes as well as lectures on the Supreme Court.

COURTING JUSTICE is organized chronologically, but chapter titles give us few hints of what is covered nor is there a discernable rationale as to why chapters begin and end where they do. In trade book fashion, numerical notes are not used to tie specific information to sources. Rather, the references and sources are listed by section-frustrating for a scholar, but probably easier on the general public's eye. The index appears to be comprehensive, but copious notes are a must for later reference because of the detailed snippets one encounters (to wit, the goldfish reference). Also, the lack of legal citations anywhere in the book to the cases discussed, even in the rigorous appendix of more than 90 gay rights cases, will add to a researcher's frustration.

Scholars who are looking for a theoretical framework with which to understand the Supreme Court's treatment of gay rights cases will be disappointed. This is a book written by journalists who read, think and write about the Court for the general public. They are not judicial scholars versed in the language of the attitudinal or legal models of decision making. That is not to say that this is a book to be ignored by judicial researchers. Quite the contrary, COURTING JUSTICE is loaded with anecdotal evidence that will surely spark the intellectual curiosities of young doctoral students and seasoned scholars alike. Aside from the research that is surely to be sparked by a close reading, the value of COURTING JUSTICE can be found in the historical recording of gay rights cases in the nation's highest court, an accounting that the authors found lacking in their own quest for answers. And as surely as the Justices read the morning newspapers, watch the evening news, and ignore the goldfish swimming in the water cooler, the stories told in COURTING JUSTICE will find their way back into the institutional memory and history of the U.S. Supreme Court, just as the authors intend (p. 24). COURTING JUSTICE places in plain view the memoirs of Gay America's long and difficult engagement with the Supreme Court in seeking the rights and liberties guaranteed by the U. S. CONSTITUTION.

REFERENCES:

Nieves, Gail Epstein. 2001. "Foster Parent Challenges State Ban on Gay Adoption." THE MIAMI HERALD (July 21): 1B.

Perry, H. W. 1991. DECIDING TO DECIDE: AGENDA-SETTING IN THE UNITED STATES SUPREME COURT. Cambridge, Mass.: Harvard University Press.

Shilts, Randy. 1987. AND THE BAND PLAYED ON: POLITICS, PEOPLE, AND THE AIDS EPIDEMIC. New York: St. Martin's Press.

Shilts, Randy. 1993. CONDUCT UNBECOMING: LESBIANS AND GAYS IN THE U.S. MILITARY. New York: St. Martin's Press.

"State Gives Slain Cop's Companion $25,000." 2001. THE MIAMI HERALD (July 21): 5B.

Woodward, Bob and Scott Armstrong. 1979. THE BRETHREN: INSIDE THE SUPREME COURT. New York: Simon and Schuster.

CASE REFERENCES:

BOWERS v. HARDWICK, 478 U.S. 186 (1986).

BOY SCOUTS OF AMERICA v. DALE, 528 U.S. 1109 (2000).

KAMENY v. BRUCKER. 365 U.S. 843 (cert. denied) (1961).

"ONE," INC. v. OLESEN, 355 U.S. 339 (1958).

ROMER v. EVANS, 517 U.S. 620 (1996).

******************************************************************************

Copyright 2001 by the author, Rebecca Mae Salokar.