A Dissenting Voice : Blackmun Disputes Ruling on Homosexuals

Justice Harry A. Blackmun said Friday that the Supreme Court was wrong when it refused to grant constitutional protection to homosexual conduct and predicted that the court one day will “vindicate” his dissenting view in the case.

In an unusual public comment on a much-debated issue, Blackmun said he believed the court majority “decided on the result they wanted and then went after it” when the justices in 1986 upheld a Georgia law making sodomy a crime.

Blackmun, author of a bristling dissent in the 5-4 ruling, told a forum sponsored by the Claremont Graduate School: “I’m convinced the position of the dissent is correct and I think the time will come when it will be vindicated. It will take a long time . . . long after my time.”

In the decision, the court dealt a sharp defeat to civil liberties and gay-rights groups by refusing to extend the same privacy guarantees to homosexual activity it previously had granted in cases involving marriage, child-rearing, contraception and abortion. At the time, 24 states prohibited sodomy; the rest, including California, had legalized private homosexual activity between consenting adults.

“This is one of those issues that’s out there and the court isn’t very eager to get into it,” Blackmun said Friday. “It will be a long time before that mind-set is changed.”

The justice, also the author of Roe vs. Wade, the milestone 1973 decision legalizing abortion, made his remarks in answer to a question after participating in a panel on the Bill of Rights with former U.S. Solicitor General Erwin N. Griswold and Claremont constitutional historian Leonard W. Levy.

During the question session, Blackmun alluded--sometimes humorously--to his role as a moderate liberal on a high court now dominated by conservatives under Chief Justice William H. Rehnquist.

“It is fair to say the court today is conservative,” the justice acknowledged. “It is bound to be that way well into the 21st Century.”

Blackmun’s comments on the 1986 ruling and on the conservative nature of the current court are rare for a high court justice. Ordinarily, court members limit their public remarks to more theoretical discussions of legal issues and philosophy.

Blackmun was generally believed to be a conservative when he was elevated from the U.S. 8th Circuit Court of Appeals to the high court by President Richard M. Nixon in 1970. Since then, he has often voted with the court’s liberal wing, in addition to writing the controversial abortion decision.

“I get accused of having changed horses in the middle of the stream,” Blackmun said, “but I think I am the same person I was on the Court of Appeals.”

“Republicans think I am a traitor and Democrats don’t trust me,” he said wryly. “So I twist in the wind, owing allegiance to no one, which is precisely where I want to be.”