Please watch this video of San Diego Mayor Jerry Sanders’ press conference when he announced that he would not veto, as he promised in his campaign for office, a resolution supporting marriage equality that directed the San Diego City Attorney to file a brief in support of the California Marriage Cases. It is a powerful testament to the effect of personal witness: Mayor Sanders’ staff members and daughter are out as gay to him, and he cannot deny them their right to have the state honor their relationship as California honors his with his wife.
Mayor Sanders will testify Tuesday for the Plaintiffs.
This personal testimony about not being able to deny rights to those you know and love might resonate with SCOTUS Associate Justice Anthony Kennedy in the Lawrence case. Did some SCOTUS clerks of Justice Kennedy approach him when Lawrence was being heard? Did they, previously closeted, come out to him and personally testify to him about the pain they felt that their lovemaking was illegal?
Kennedy wrote the majority opinion in Lawrence, which was decided 6-3:
The majority decision found that "the intimate, adult consensual conduct at issue here was part of the liberty protected by the substantive component of the Fourteenth Amendment’s due process protections." Holding that "the Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," the court struck down the anti-sodomy law as unconstitutional. Kennedy’s opinion crucially grounded the right of consenting adults to have sex on how intimate and personal the conduct was to those involved, not on the conduct being traditionally protected by society (as in Bowers), procreative (as in Eisenstadt and Roe), or conducted by married people (as in Griswold). This opened the door in theory to protection of a whole host of sexual activity between consenting adults not protected by other decisions. Kennedy was careful however not to extend the opinion to include governmental recognition of such relationships.
From Anthony Kennedy’s wiki page:
Kennedy has often taken a strong stance in favor of expanding Constitutional rights to cover sexual orientation. He wrote the Court’s opinion in the controversial 1996 case, Romer v. Evans, invalidating a provision in the Colorado Constitution denying homosexuals the right to bring local discrimination claims. In 2003, he authored the Court’s opinion Lawrence v. Texas, which invalidated criminal prohibitions against homosexual sodomy under the Due Process Clause of the United States Constitution, overturning the Court’s previous contrary ruling in 1986′s Bowers v. Hardwick. In doing so, however, he was very careful to limit the extent of the opinion, declaring that the case did not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.
Gay SCOTUS clerks may have shaped even earlier SCOTUS deliberations as well, and the vagueness about Justice David Souter’s confirmed bachelorhood — buttressed by Souters’ clerks’ fierce protectiveness about his privacy — may have moderated at least the language Justices used in internal discussions about cases relevant to gays and lesbians.
Coming out is powerful; coming out to those in power can be proportionately more powerful.