Jul 08, 2005  |  By: EARTHA MELZE  | COMMENTS     

Gay civil rights groups issued ominous warnings in response to news of Supreme Court Justice Sandra Day O’Connor’s retirement last week.

O’Connor, a moderate conservative appointed by President Ronald Reagan and the nation’s first female Supreme Court justice, has been a key swing vote on the court since 1981.

Her record on gay rights is no different. She voted with the 5-4 majority in 1986 to uphold Georgia’s sodomy law in Bowers vs. Hardwick, then voted with the 6-3 majority 17 years later in Lawrence vs. Texas to strike down that state’s sodomy law. Even then, O’Connor refused to join the five other justices in striking down the Bowers ruling.

She voted with the majority in the 5-4 ruling in Dale vs. Boy Scouts to protect that organization’s First Amendment right to bar gays from the organization, and joined a unanimous court in Hurley vs. Irish-American Gay, Lesbian & Bisexual Group of Boston, upholding parade organizers’ First Amendment right to exclude a gay group from participating.

In the first landmark gay civil rights win before the high court, O’Connor voted with the 6-3 majority in Romer vs. Evans, which overturned Colorado’s constitutional amendment against protecting gay men and lesbians from discrimination. But she disappointed gay rights activists just two years later when again voted with a 6-3 majority not to even review an appellate court ruling that upheld a similar ordinance in the city of Cincinnati.

In a rare split decision with O’Connor in the dissent, she voted in 1998 with the court’s three most predictably conservative justices — William Rehnquist, Antonin Scalia and Clarence Thomas — in Bragdon vs. Abbott disagreeing with the majority’s decision that HIV even without symptoms qualifies a person for protection under the Americans with Disabilities Act.

O’Connor’s vote was also critical in cases involving church/state separation, affirmative action and women’s rights.

The judicial nomination process has been much in the news during recent months as Democrats and Republicans battled over controversial nominees to the federal bench. Many said those battles were test runs for a larger fight that would take place should President Bush have the chance to appoint a Supreme Court justice.

Until last week, most pundits predicted that Rehnquist, the conservative chief justice, who is 80 and ill with thyroid cancer, would be first to retire.

The resignation of O’Connor, a key swing vote in the closely divided court, makes certain that significant and long-term changes are close at hand for the Supreme Court.

President Bush could announce a nominee to replace O’Connor as soon as next week or as late as early August, but has said he will take his time in choosing a successor. Hearings are likely in September, with a replacement ready to take a seat on the court by the beginning of its next term, in October.

Political action groups across the political spectrum have stepped up organizing efforts to influence the judicial selection process.

Many expect that the issue of judicial filibusters will be revisited during the Supreme Court nomination process. A deal struck by a group of seven Republican and seven Democratic senators allowed three of Bush’s most controversial federal court nominees to be put to a vote.

The group, known as the “gang of 14” agreed that the Republicans would not eliminate the Democrats’ right to filibuster and that the Democrats would not filibuster judicial nominees except under extraordinary circumstances.

The filibuster compromise did not define what would constitute extraordinary circumstances, and this week several member of the “gang” indicated that only a nominee’s character or fitness, and not their judicial philosophy, could justify a filibuster.

Gay groups respond
“In the wake of O’Connor’s announced retirement, the specter of a sharp U-turn looms large,” warned Kate Kendell of the National Center for Lesbian Rights, a view echoed by many other gay rights groups.

The Lawrence vs. Texas decision illustrates how powerfully a Supreme Court decision can affect civil rights, she said.

“One day our sexual intimacy was criminal in 13 states, and the next day that badge of inferiority was erased,” Kendell said. “The Lawrence decision served as a lightning rod, initiating a necessary national discussion about gay rights.”

Kendell said that she is worried that the national dialogue on gay rights could be cut short if ...