LEFT OUT

by Daryl Moore

WHO SPEAKS FOR US?

Recent remarks from Justice Thomas in a cross-burning case startled the high court. Will one of the Supremes step up in the sodomy case?

Justice Clarence Thomas has been on the United States Supreme Court for just over 10 years. In his decade on the court, he has earned a reputation for barely speaking during oral argument, leaving the questioning of the advocates who appear before the court to his fellow justices.

Not any more. Last month, Justice Thomas finally awoke, and spoke passionately and at length during the argument of a tough case involving a First Amendment issue. The case is Virginia v. Black. The issue is whether a 50-year-old Virginia statute that bans cross burning violates the First Amendment right to free speech.

The appeal resulted from the prosecution of Barry Black, who organized and led a Ku Klux Klan rally on private property, with the permission of the property owner. As part of the rally, a 25–30-foot-tall cross was burned. Black was charged with violating Virginia’s cross-burning statute, convicted, and appealed. In his appeal, Black alleged that the statute was an unconstitutional infringement on his First Amendment right to free speech. Black’s appeal worked its way to the U.S. Supreme Court, which heard arguments on December 11.

The hour-long argument started out like most others, with Justice Thomas letting his colleagues ask most of the questions. For the first half of the argument, the other justices appeared skeptical about the constitutionality of the statute. Then, about halfway through the argument, Justice Thomas interrupted. He did not ask questions. Instead, he gave a brief speech about the Ku Klux Klan and the horrific history of racism in the South.

Thomas spoke about the Klan’s 100-year “reign of terror” on black communities leading up to the passage of the Virginia statute. He asserted that the burning of a cross is “a symbol of that reign of terror … unlike any symbol in our society,” whose only purpose is “to cause fear and to terrorize a population.”

While the justices frequently interrupt each other during arguments, they did not interrupt Thomas. Instead, they listened intently until he finished. Afterward, they seemed less skeptical about upholding the statute as constitutional.

What happened during argument to turn the other justices around? Clarence Thomas spoke.

And when he spoke, the other justices sat transfixed while their black colleague personalized the experience of being intimidated by a burning cross. They sat speechless while he talked about the “reign of terror” visited on his race. After Clarence Thomas made it personal, his colleagues blinked in the face of the Constitution.

This has happened before. In 1973, Justice Lewis Powell voted with majority in Roe v. Wade, which held that women have a constitutional right to privacy that includes the right to abort a non-viable fetus.

After leaving the bench, Powell explained that his vote in Roe v. Wade was based, in part, on an experience he had as a lawyer. While working at a law firm, a firm mail clerk came to Powell for help. The clerk had gotten his girlfriend pregnant. Because abortion was illegal, she attempted to abort the fetus herself. The clerk attempted to help her, but she died as a result of the abortion. Powell explained that this personal experience changed him and influenced his vote in Roe v. Wade.

After he retired, Powell also said that he regretted his 1986 vote in Bowers v. Hardwick. In Bowers, the Supreme Court upheld the criminal convictions of two Georgia men for having gay sex in a private home. The vote was 5–4. Powell said that upon reflection, he realized that the dissent “had the better argument.” He also said that at the time of the Bowers decision, he did not know any homosexuals. If he had, such a personal relationship might have affected his vote, and Bowers might have gone the other way. (Ironically, one of Powell’s law clerks was gay, but was not out to Powell.)

About a week before Clarence Thomas personalized a racist “reign of terror” for his colleagues in the cross-burning case, the Supreme Court agreed to hear Lawrence v. Texas. In Lawrence, two gay men are challenging the constitutionality of the Texas “Homosexual Conduct” statute, which outlaws gay sex even if is consensual and done in private. Lawrence provides the Supreme Court with the perfect opportunity to fix the mistake that Powell says it made in Bowers.

While I am hopeful that the Supreme Court will overturn Bowers and hold that the Texas “Homosexual Conduct” statute it unconstitutional, I worry.

I worry because I wonder who on the court will personalize the persecution of gays and lesbians as Thomas personalized the persecution of blacks. Who on the court has a personal relationship with a gay or lesbian person like Powell had with someone who had suffered because of an archaic abortion law? Who on the court will speak for us?

Writing from the liberal end of the spectrum, Houston attorney Daryl Moore has a general practice and is board certified in civil and appellate law. He can be reached at DarylMoore@outsmartmagazine.com.

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