Supreme Court Justice Lewis Powell

The New York Times, anticipating next year’s Supreme Court consideration of the gay marriage problem, tells a fascinating story about the late Justice Lewis Powell, who was the swing vote in the 1986 case of  Bowers v. Hardwick, which was overturned in 2003, upholding a Georgia law outlawing sodomy.

During the consideration of the case, Powell told his colleagues that he had never met a homosexual, though in reality he had more than one gay law clerk during his tenure, and according to at least one of the former clerks, knew it.  (Powell even quizzed one of them about the mechanics of gay sex.) The reason he told his fellow Justices an untruth, the theory goes, is that he knew there was a stigma in the legal profession and in Washington connected to being gay, and he wanted to protect his law clerks.

Yet Powell, after flip-flopping on Bowers, finally came down on the side of a state’s right to make homosexual sex a crime. Continue reading →