Countertrends
APRIL 1986
BALBOA PARK
SAN DIEGO, CALIFORNIA
Every afternoon promptly at 4:00 P.M., the British Airways 747 roared into San Diego’s Lindbergh Field. Some skeptics asserted that the runway at the international airport was too short for such a huge plane. Indeed, the aircraft needed almost every available inch of runway to make its landing. Therefore every afternoon at four, as the plane streaked directly over the broad grassy swards of San Diego’s Balboa Park, everything stopped for a moment and all the young men listened for an explosion. When seconds passed and the sound faded, and it was clear there would be no crash, conversations resumed.
Welcome to “social hour,” every afternoon in Balboa Park, especially on weekends. Social hour, when hundreds of young men gathered along the well-manicured lawns to talk and cruise the park’s boulevard. The scene was anything but furtive, though only seasoned locals would notice that these men—muscular, handsome, and tanned from the Southern California sun—were not only gay but were also sailors or Marines. Short-cropped haircuts that allowed for some length of hair in the back and the sides, though not enough to hit the collar, belonged to the Navy; men with hair shaved severely close on the sides of their heads were Marines.
Well-informed cruisers could even identify precisely where these social hour visitors came from by the base stickers tucked on the lower left-hand corner of almost every windshield. Red stickers for enlisted men, blue stickers for officers, the names of their bases written out plainly in capital letters. There were no attempts to conceal them.
San Diego, home to one of the greatest concentrations of military personnel in the United States, was also home to an extraordinarily open gay military subculture. Balboa Park had become something of an open-air community center for gay military men. Though there was some cruising—along Balboa Park Drive, which had become known as “The Fruit Loop,” and by the spacious fields alongside nicknamed “Queen’s Green” by the young enlisted men—the ambience was more social than sexual.
After daytime socializing, the men could retreat to any number of gay bars that hosted large concentrations of gay military personnel. The West Coast Production Company, one of the nation’s biggest gay discotheques, was always packed with men sporting telltale short haircuts. Nights were especially celebratory when an aircraft carrier returned from a long cruise, or at the end of the western Pacific, or WESTPAC, cruises that took thousands of gay sailors away from San Diego for six months at a stretch. It was not unusual to see stocky young Marines moonlighting as bouncers at the gay bars. The more handsome military men often competed in bar-sponsored beefcake contests. Three of the four contestants at the “Mr. Bulc 1988” competition at a popular San Diego leather bar were in the Navy, one an officer. Often, these contestants’ pictures appeared in local gay newspapers. Although no one doubted that the Naval Investigative Service or other military investigatory agencies knew that hundreds of easily identifiable military men frequented the parks and bars, witch-hunts rarely focused on the area. Few among the local Navy officials, it seemed, cared.
Although the late 1980s saw a great number of gay people expelled from the military, it also saw the beginning of an even more significant countertrend: the acceptance of gay soldiers and sailors by large numbers of military field commands. Much of the gay military subculture was now only slightly under cover, when it was hidden at all. The trend was most pronounced outside the more conservative bases in the American South. In no area was it more evident than San Diego, where local commands seemed to adopt the live-and-let-live California outlook and only enforced gay regulations when it was absolutely necessary.
Adding to this more relaxed posture was the resolution of growing numbers of homosexual military personnel that if they were ultimately presented with a choice between a covert life-style in the military and an open one outside it, they would choose the latter. Although most realized they could not press the issue of homosexuality, they were also resolved not to live fearfully under its shadow.
Navy Lieutenant Ruth Voor, now three years out of the Naval Academy, was typical of the new breed. Karen Colton’s decision to move in with her in San Diego was risky, Ruth knew. Other officers who had attended Annapolis with them would probably recognize that Colton had clearly moved to San Diego to be with Voor, since it was beyond coincidence that Colton would simply happen to end up in the same city as the woman with whom she had spent so much time in college.
But Ruth had decided that furtiveness was not worth the psychological toll, so she did not make a great effort to hide the fact that she and Karen were decidedly a couple. Both women went to local women’s bars and were active in Dignity, the organization for gay Catholics. Karen marched in the San Diego gay parades and became involved in the local group that was fighting a statewide initiative campaign to require AIDS testing of California’s food handlers and public school teachers. When Ruth went to work aboard the USS McKee on Monday morning and was asked what she did over the weekend, she did not hesitate to say that “Karen and I” did this or that. Ruth no longer bothered to fabricate boyfriends.
Most of the officers with whom Ruth worked seemed to recognize that Ruth and Karen were a couple, and no one apparently cared. At a dinner with officers from the McKee, the ship’s chaplain asked Ruth why she had not brought her roommate. Thinking the chaplain meant the man with whom she and Karen shared their apartment, Ruth said, “He couldn’t come.” The chaplain corrected her: “No, I meant Karen.” When Ruth’s boss, a lieutenant commander, married, he invited Ruth to his wedding and amended his invitation with the comment, “You know, it’s not just you who is invited. Karen is invited, too.”
Comparable stories emerge from every branch of the military during this time. When NIS agent Linda Gautney was transferred from the Norfolk NIS office to London, she found her colleagues as enthusiastic as ever about investigating gays, particularly lesbians. When rumors made it back to the office that there were a number of lesbians working in a particular Navy command outside London, Gautney was dispatched to see if the commanding officer wanted the NIS to launch an investigation. Gautney never looked forward to gay probes, but she remained fearful that if she did not carry out these assignments, she might elicit the same harassment routinely doled out to gays. In this case, however, she found that the Navy commander with whom she met was as reluctant to investigate gays as she.
“Why should we want to investigate?” he asked her.
Linda halfheartedly repeated that gays were security risks and a threat to the good order, discipline, and morale of the United States Navy. The commander did not seem convinced. If the rumors were true, he said, and he did not appear to disbelieve them, then a lesbian investigation could cost him half the women in his command. And that would surely cause a far greater morale problem than just letting the women do their jobs and serve out their time.
“So let’s just leave it alone,” he said.
Similar logic curtailed other gay probes. At Balboa Naval Hospital in San Diego, when a new admiral suggested launching an investigation of gay corpsmen, another officer advised him, “Admiral, if we fired all the gays, we’d have to close the hospital.” It became a joke among gay corps-men that if the Navy conducted a genuine purge of gays at Balboa, the admiral would be the only one left.
Many other commanders seemed inclined to agree. When launching a lengthy WESTPAC cruise in the late 1980s, the commanding officer of the USS Cape Cod used his opening remarks to say that his crew’s private life was its own business. He made it clear he would not tolerate drugs on his ship, but the remarks about private lives made it obvious to gay personnel that he would countenance no witch-hunts. Word spread a few weeks later that the ship’s legal officer had suggested a lesbian investigation and had been harshly scolded and informed that there would be no gay probes while this captain was in charge.
Conversations with scores of gay military personnel from this period also yielded numerous stories of gay sailors or soldiers who attempted to get out of the service by telling their commanding officers that they were homosexual. More often than not, commanders told the malingerers to get back to work.
Some commanders voiced exasperation at the interest military investigators showed in homosexuality. When a New York state National Guard commander discovered that Army National Guardsman Ellen Nesbitt had acknowledged she was gay to an investigator doing research for her security clearance, Nesbitt’s commander asked incredulously, “Why didn’t you just lie?” San Diego military counselor Bridget Wilson recalls that when one commander learned that one of his top women was being investigated for homosexuality, he blurted out, “I don’t care if she fucks with monkeys, she’s a damn good sailor.”
Increasingly, senior officers and noncommissioned officers involved in relationships chose not to conceal them. When Master Sergeant Paul Ribarich was transferred to Tampa to work in the Air Force recruiting office there, he introduced his lover Jack to his colleagues. Although Paul referred to Jack as his roommate instead of his lover, it quickly became clear that the pair was a couple. When Paul was invited to dinner, he was told to bring Jack. When the recruiters decided to hold a thirty-ninth birthday party for Paul, they called on Jack to help organize it.
Major John Evans had served sixteen years in the Air Force when he began a relationship with Joe Hoyer in 1982. Hoyer understood gay military etiquette from his service as an Air Force enlisted man in Vietnam. Neither sought to challenge openly the Air Force’s gay policies, but neither changed his life to accommodate them either. When the officers’ club at Evans’s Davis-Montham Air Force Base held their casino nights, Hoyer was often asked to deal. The pair was open about the fact that they lived together, and fellow officers understood that if they invited Major Evans to a party they also invited Joe. When Evans had his retirement luncheon in 1986, his mother sat on one side of him at the head table, and Joe on the other. The presiding officer at the retirement ceremony traditionally hands the retirement certificate and a dozen red roses to the officer’s wife in deference to the crucial role officers’ wives play in their husbands’ careers. When Evans’s ceremony was over, Joe grabbed a flower out of the table centerpiece and announced to a staff officer, “I want my rose.” No one argued that he did not deserve it.
Retirement ceremonies in the late 1980s increasingly became coming-out rituals for career military people leaving the service, with gay officers using the occasion to speak against the military’s ban on gays. When a black E-9 of Evans’s acquaintance left the Air Force, he hung a huge sign at the site of his retirement ceremony: “The bitch got away with it,” it read.
The military’s growing acceptance of its homosexual members paralleled the emergence of an all but openly gay subculture. While military installations had had gay cruising areas since the Vietnam War, gay gathering places now became oriented more toward socializing than sex. On aircraft carriers, out-of-the-way storage rooms became informal gay discos. By 1987, such a disco on the USS Eisenhower had evolved into a sort of community center where as many as 200 sailors congregated every day. Even smaller ships had discos. The presence of numerous gay sailors on the USS California, including some of very high rank, made Thursday night a ritual, with as many as fifty sailors crowding into a lower warehouse and dancing to the latest disco songs, recalls Terry Ryder, an Arabic linguist detailed to the ship at that time.
Even the most remote bases had gay areas. Gays stationed at the Indian Ocean refueling station of Diego Garcia claimed their own stretch of beach, where “It’s Raining Men” blared from a dozen separate tape decks. And the isolated Naval Air Station at Adak, Alaska, had its “gay bay” where lesbian and gay personnel gathered on summer weekends to swim. Just as gay sailors had long given campy monikers to their ships, soldiers now created gay nicknames for their posts. Fort Benjamin Harrison in Indianapolis became known as Fort Benita; Fort Sill, Oklahoma, was Fort Silly.
The increasing gay openness produced new twists on old Navy traditions. The “shellback” ceremonies to initiate sailors on their first crossing of the equator had always contained a homoerotic subtext, but by the late 1980s the tradition, particularly the competition to be King Neptune’s queen, had taken on the trappings of overt gay burlesque. Gay sailors came aboard with duffel bags full of wigs, heels, and makeup. During the 1984 WESTPAC cruise, a particularly flamboyant contestant on the USS Carl Vincent concluded the talent portion of the competition by gyrating into a wild dance and plopping himself into the lap of an admiral, much to the delight and cheers of the other enlisted men.
The Family permeated even the highest-level security positions in the armed forces. Gay military personnel assigned to the super-secret National Security Agency lunched together at the NSA cafeteria at Fort Meade and called themselves the GMA, Gay Military Association. Air Force linguists—who had Air Force specialty code number 208—had become so preponderantly gay that people called them two-oh-she’s.
The emergence of Family units at every base helped gays create their own old-boys’ network. A gay detailer at a hospital would likely assign his best gay corpsman to work with a gay anesthesiologist. Family members in motor pools made sure compatriots needing a vehicle went to the head of the line. Gays sometimes even congregated together at their duty stations. In 1983, one airman counted fifteen of the thirty-two airmen in his squadron at Sembach Air Base in Germany as gay.
New conventions emerged. It became a custom among gay men to wear each others’ dog tags to signify a “steady” relationship. This helped distinguish a gay soldier’s genuine relationship from the “heterosexual” one symbolized by the wedding rings that were increasingly being worn by lesbian and gay service personnel.
Though Ruth Voor was less concerned with concealing her sexual identity than others, she entered into such a marriage, and she was such a convincing bride that the clerk who married her to her friend Joe looked at the couple and sighed, “You’re such a happy couple. You’re going to be forever.”
The comment amused Karen Colton, who with Joe’s lover, Petty Officer First Class Todd Quintenz, had served as “best couple” at the wedding. By now, Karen was married herself—to Quintenz.
The two couples had met at the gay Catholic group Dignity, in which all four were active. In the Navy since 1981, Quintenz had recently been transferred to San Diego after a stint as an instructor in the Navy’s nuclear power training school in Idaho Falls. The two couples had decided to wed as a matter of convenience, and to gain the same benefits heterosexual couples enjoyed in the military. Joe wanted to be able to visit Quintenz on base, and take advantage of the bargains at the Navy commissary. Karen stood to enjoy the same benefits, as well as the health insurance benefits she would gain as a military spouse. Both Ruth and Quintenz would also receive the housing allowance for married couples. And, of course, the veneer of matrimony would protect them from investigation.
As partners in lawful heterosexual matrimony, Ruth and Quintenz were part of a marriage boom among gay military personnel in the late 1980s. The trend was in large part a response to the increased pressure on both lesbians and gay men stemming from the mounting ferocity of gay purges. It was an easy adjustment for gay military personnel, given that homosexual women and men in the military had generally avoided the separatism so common among their civilian counterparts. The Family was co-sexual on bases throughout the world.
“Contract marriages” were a new phenomenon different from past generations when gay men would marry heterosexual women without informing them of their sexuality. Family marriages tended to be very aboveboard, with prearranged agreements that spouses would testify for one another if either ever came under investigation. Couples composed of two military people could easily explain why they did not live together; military couples were frequently assigned to separate duty stations. And marriage allowed couples to move off base, away from prying eyes.
There was also the naive heterosexual presumption that anyone married must be straight. This allowed wedded gays a level of protection. In fact, gay investigations during the 1980s were often followed by a flurry of gay matrimony. After the 1984 purge of lesbians at Parris Island, at least a half dozen lesbians married gay servicemen.
One journalist attending a Thanksgiving dinner with lesbian and gay Marines at Camp LeJeune in the late 1980s, for example, watched with amusement while guests took two sets of photos: photos for parents, in which everyone sat with-their presumed spouses, and photos for personal photo albums, in which everyone rearranged themselves so they were sitting with their actual partners.
The marriages had their own risks. When sailor Michael Patton married a heterosexual female friend from his hometown of Baltimore, he wrote a prenuptial agreement as to precisely what their marriage would entail and not entail, since he did not want the ersatz nuptials to interfere with a relationship he was pursuing with another man. When the couple separated unamicably two years later, his wife sent their letters of agreement to the Naval Investigative Service, which opened an investigation that resulted in Patton’s discharge.
The vogue of contract marriage paralleled a growing concern among homosexual service personnel over preserving their relationships against the pressures of military service. The fact that the Stonewall generation was entering its thirties suggests that this would have happened anyway, and the AIDS epidemic only sharpened the case for settling into long-term monogamous relationships. Since society’s rules for homosexuality were constructed with an eye toward keeping it invisible, if not altogether nonexistent, protecting domestic relationships was a difficult task, and all the more arduous for gay military personnel. Increasingly, the difficulties in maintaining relationships with the pressures of investigations and discrimination were cited as reasons for leaving the service.
Within a year of joining the Navy in 1964, Dr. Mike Rankin, a psychiatrist, took his first gay referral from a chaplain, a young sailor confused about his sexuality. Rankins’s compassionate response led to more referrals. Wherever he was assigned, word preceded his arrival that here was a sympathetic listener for anyone struggling with gay issues—or for gay sailors who wanted a psychiatrist’s support in leaving the Navy. The higher in rank Rankin rose, the more it seemed that his colleagues understood he was gay and the less it seemed to matter.
About the time that Rankin was made captain in the Reserves, he decided to leave his native Arkansas for the greater freedom of living in San Francisco. As the Arkansas state mental health commissioner, he felt obliged to offer the governor a candid explanation for his moving. The governor tried to dissuade him. It did not matter that he was gay, Bill Clinton said, and he hoped Rankin would stay on as chief of the state’s mental health programs. But Rankin did relocate.
After several years in San Francisco, Rankin fell into a fairly open gay lifestyle. He was president of the local gay synagogue and became active in AIDS organizations. The turning point in his career occurred when he rented his home to two gay men, who promptly trashed it. When Rankin evicted them, they notified the local office of the Naval Investigative Service. Rankin’s commanding officer interceded on his behalf. Leading a gay congregation, he ruled, was simply an exercise of Rankin’s freedom of religion. The NIS could “shove off,” he said. Later, he asked Rankin to be the godfather to his infant son.
By now, however, rumors had spread that the psychiatrist was gay. When he was assigned to a frigate based at Treasure Island, he found his new command less accepting. One day in 1987, Rankin walked into the ward room to find his chair turned away from the officers’ table. In Navy tradition, the turned chair is a request by the officers present for one’s resignation. Rankin looked at the other officers in the room, turned his chair around, and sat down to eat.
It was now clear that after twenty-three years on active and Reserve duty in the Navy, Rankin’s future was limited. Though he had been in line for an admiral’s star and to serve as the senior medical officer of the local command, it was increasingly unlikely. “It’s very hard for single men to make admiral,” a rear admiral told him bluntly. The next year, Rankin retired.
One Navy fighter pilot learned the nuances of acceptance and discrimination in late 1985 when he was surprised by a fitness report that gave him good marks but did not cite him as one who should be rapidly promoted. The lieutenant had always enjoyed the most exemplary performance evaluations and went to his commanding officer to ask why he had been marked down. None of the officer’s explanations made sense, and the pilot bickered with him until finally the commander turned away and walked to the window. “The report doesn’t say anything about your girlfriends, does it?” the officer said, staring out the window. The pilot replied that there was no place on the report to discuss his romantic involvements. The captain continued staring out the window. “No,” he said pointedly, “there’s no place for it.”
Apparent acceptance sometimes masked subtle discrimination. After one Navy psychiatrist assigned to Balboa Naval Hospital confided to a heterosexual colleague that he was gay, the colleague began calling on him to take over his shifts. The heterosexual psychiatrist never made an overt threat, but the gay doctor felt the subtext—if he did not accede to his colleague’s demands, the other doctor might turn him in.
At any time, a change in command could transform an accepting environment into a hostile one. The leniency of some segments of the military reflected the reality that decisions about pursuing gay investigations were generally made at the field command level. Like their civilian counterparts, growing numbers of these commanders were simply not as antagonistic toward gays as their predecessors had been. However, a large share if not a majority of commanders remained opposed to gays in uniform, which meant that one officer’s transfer or promotion could be the harbinger of malicious crackdowns and purges.
Therefore, there was still a danger in living an openly gay lifestyle in the heart of an institution that maintained draconian codes against gays. But the new generation of gay military people had learned to take their chances, and by the late 1980s, it was clear that the odds were in their favor. By then, being gay in the military was like hearing the roar of the 747 every afternoon in Balboa Park. You knew it might end in a great explosion, but usually it made a safe landing.
JUNE 30, 1986
UNITED STATES SUPREME COURT
WASHINGTON, D.C.
If there were any questions about the degree of leniency the United States government would afford gays, these were answered decisively when the Supreme Court released its opinion in the case of Bowers v. Hardwick, the constitutional challenge to Georgia’s sodomy law. The justices, voting five to four, issued a decision far more sweeping and far more malevolent than anything civil libertarians had feared.
Rather than take up the broad issue of whether the state had the right to regulate citizens’ consensual sexual activities, the court had brushed aside the fact that the Georgia sodomy statute applied to both heterosexuals and homosexuals, and instead focused exclusively on whether the Constitution conferred upon citizens the right to engage in “homosexual sodomy.” As if to express his distaste for the whole matter, Chief Justice Warren Burger used the phrase “homosexual sodomy” repeatedly in his concurring opinion. The court’s majority also made it plain that their ruling was meant to single out gays and not confront the broader issue of state regulation of sexual conduct. “We express no opinion on the constitutionality of the Georgia sodomy statute as applied to other acts of sodomy,” the court said.
The majority opinion was a fascinating work of jurisprudence. Writing for the majority, Justice Byron White ruled that the nation’s sodomy laws had “ancient roots” and stemmed from “millennia of moral teaching.” No relationship existed between the issues at hand in Bowers and those raised by previous decisions regarding abortion and birth control, Burger ruled, because those decisions related to “family relationships, marriage or procreation,” and “no connection between family, marriage or procreation on the one hand and homosexuality on the other has been demonstrated.…” Exhaustive footnotes recorded when states had enacted their sodomy laws—Connecticut in 1791, Delaware in 1797, and Georgia in 1784—leading White to conclude that it was “facetious” to argue that the gay people’s right to privacy might be “deeply rooted in our Nation’s history and traditions.” The fact that half the states had laws banning gay sexual acts argued against this, White said. Moreover, by saying gays had the right to engage in sodomy because they did so in the privacy of their own home could lead to judicial logic that would also enfranchise acts of incest if they occurred in private, White ruled.
In his concurring opinion, Chief Justice Burger drew far less from the Constitution than from the Bible. Gays had been subjected to punishment “throughout the history of western civilization,” Burger wrote, noting that under Roman law, homosexuals could be put to death. He then quoted the famed legal scholar Blackstone, who. said that “the infamous crimes against nature” had a “deeper malignity” than rape, and constituted “a heinous act the very mention of which is a disgrace to human nature.” Burger concluded, “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”
In his scathing dissent, Justice Harry Blackmun ridiculed the majority’s “obsessive focus on homosexuality” and argued, “this case is about the most comprehensive of rights and the right most valued by civilized men, the right to be left alone.” Blackmun mocked the notion that sodomy could be a criminal offense now because it had been for hundreds of years, saying such logic would leave the nation with “moribund” laws that were justified only because “they were in blind imitation of the past.” Laws against miscegenation, abortion, and for school segregation had been on the books for generations too, though the Supreme Court had ruled later that they were unconstitutional.
Blackmun opined that homosexual orientation was not a matter of “personal election” but an aspect of a person that “may well form part of the very fiber of an individual’s personality. The fact that individuals define themselves in a significant way through their intimate relationships with others suggests, in a Nation as diverse as ours, that there may be many ‘right’ ways of conducting those relationships, and that much of the richness of a relationship will come from the freedom the individual has to choose the form and nature of these intensely personal bonds.”
In the most curious opinion of the day, Justice Lewis Powell, whose vote had changed the outcome of the case, wrote that although he would not rule the laws unconstitutional, he felt there might be an Eighth Amendment issue if someone was put in jail for a violation. Such prison time for private consensual sex would violate the Constitution’s ban on “cruel and unusual punishment.”
Libertarians compared the ruling to the Dred Scott decision in 1857 that upheld the Fugitive Slave Act with the logic that since African Americans were not “citizens” they could not be entitled to constitutional guarantees of freedom. “In the shadow of the Bowers decision, the Court will be, in effect, sanctioning discrimination against homosexuals,” scholar Serena Novell wrote in the Howard Law Journal. “… Such action will effectively stop many homosexuals from enjoying the basic freedoms which other citizens enjoy daily.” Burger’s concurring opinion, asserted legal scholar Yvonne Tharps, “was virtually a primer on Judeo-Christian moral standards and is an inappropriate substitution for rational judicial deliberation.” In his pro forma response to the decision, Laurence Tribe wrote that by focusing on Michael Hardwick’s sexuality, the Supreme Court had missed the point. The issue was not what Hardwick was doing in his bedroom, Tribe wrote, but what the State of Georgia was doing in his bedroom.
Protests broke out in San Francisco, New York, Dallas, Cincinnati, and Washington within hours of the announcement of the decision. Gays were stunned by the vehemence of the ruling. Even homosexual Republican groups joined the denunciations.
Most heterosexual Americans seemed appalled. One Gallup poll showed that 57 percent did not believe the state should have the power to forbid sexual relations between gay people, while 34 percent approved of such laws. The fact that there was any surprise at the ruling illustrated the profound denial with which the heterosexual majority insulated itself from acknowledging the injustices they meted out to the homosexual minority. The Supreme Court, after all, had only delivered what President Reagan had said he wanted—a society hostile to privacy rights, whether a heterosexual woman’s right to an abortion or a gay man’s right to have sex. The ruling was less about gay sex than about the extent to which limits of freedom could be narrowed in the United States of America. For homosexuals, at least, they could be narrowed significantly.
Prospects for the future looked poor. By the time the Bowers decision was released, Chief Justice Burger had announced he was retiring, President Reagan had named Justice William Rehnquist, the court’s most conservative and viscerally antigay member, to replace him, and had nominated Appeals Court Judge Antonin Scalia to take Rehnquist’s seat. Scalia was one of the judges who had voted for the Dronenburg v. Zech decision in 1983, a ruling that had served as a rough draft for the arguments advanced by the Supreme Court in the Bowers decision.
Bowers v. Hardwick had a devastating impact on the future of all litigation pertaining to gay rights. From now on, whenever a federal court ruled on a gay employment discrimination case, judges hearkened back to Bowers as the one Supreme Court precedent on the issue. If homosexuals did not have the right to engage in sex, what right did they have to be exempt from employment discrimination? When gays in uniform appealed their jail sentences on constitutional grounds—and more gays than ever would be imprisoned in the years ahead—military courts invariably pointed to Bowers for judicial support to confinement. In thousands of ways every day in the years ahead, the liberties of gay Americans would be circumscribed by the words of Bowers v. Hardwick.
In the months after it was revealed that Justice Lewis Powell had provided the crucial fifth vote for the Bowers decision, a story made the rounds of gay legal scholars. Powell had discussed his decision with a law clerk, the story went, said that he could not see what harm the sodomy laws did since they were rarely enforced, and mentioned in passing that he had never met a homosexual. By all accounts, the law clerk was a gay man who could have quite succinctly explained just what disastrous impact sodomy laws had on gay people, conferring on them the legal status of unapprehended felons. But the clerk did not share this information, nor did he reveal to Powell that he was talking to a gay person. Powell cast his vote in ignorance. According to gay legal observers, the clerk was one of two gay law clerks who had worked for Powell in recent years.
In a discussion with New York University law students in 1990, Powell was asked if he thought he had made any mistakes while he served on the Supreme Court. Powell cited his opinion in the Bowers case. “I do think it was inconsistent in a general way with Roe,” he said. “When I had the opportunity to reread the opinions a few months later I thought the dissent had the better of the arguments.” The case was a very minor one, he added, and had occupied not more than thirty minutes of his time.
263 PRINSENGRACHT
AMSTERDAM, NETHERLANDS
The three-story brown brick house on the edge of one of Amsterdam’s most charming canals had been one of the city’s prime tourist attractions since World War II. In their first months living together, Air Force Sergeant Jack Green of Soesterberg Air Base was dutifully taken there by his Dutch lover, Albert Taminiau. Jack knew the story of Anne Frank and her family’s years in hiding. He had not known how sweeping the Nazi genocide was, or that it was directed at groups other than Jews.
Jack mounted the narrow staircase and entered the small museum on the second floor of the building where the Frank family had concealed themselves through most of the Nazi occupation. He stopped in front of a glass case that displayed various patches assigned to those whom the Nazis did not favor. There alongside the purple triangle for the Jehovah’s Witnesses and the yellow Star of David for the Jews was the pink triangle used to mark gays. Jack contemplated the particular madness that would prompt a society to brand others so cruelly. It made him grateful to be from the United States where such a thing could not happen.