David Souter on Civil Rights
Supreme Court Justice (nominated by Pres. Bush Sr. 1990)
Recognize GLBT as a constitutionally-protected class
In "Romer v Evans", the Supreme Court struck down, 6-3, the Colorado constituent's provision that homosexual, lesbian, or bisexual status should not entitle any person to claim quota preferences, protected status, or discrimination. Thus, a women with a
room to rent could refuse to let it to a pair of homosexual men, or a church whose religion prohibited homosexual conduct could deny a practicing homosexual a position on its staff. The Supreme Court held, nevertheless, that the state's decision to
withdraw this special protection, which it was not required to give in the first place, was motivated only by "animus" and so could not stand under the rationale of the equal protection clause.
The decision is an unsupported victory for homosexual
activists. As Justice Scalia said in dissent, the Colorado constitutional provision was merely a "rather modest attempt to preserve traditional sexual mores against the efforts of a politically powerful minority."
Source: Slouching Towards Gomorrah, by Robert Bork, p.112-114
, Dec 16, 2003
Disallow all sodomy laws against same-sex activity.
Justice Souter joined the Court's decision on Lawrence v. Texas on Jun 26, 2003:
In a landmark 6-3 ruling, the Court struck down a sodomy law in Texas and, by proxy, invalidated sodomy laws in the 13 other states where they remained in existence, thereby making same-sex sexual activity legal in every state. The court had previously addressed the same issue in 1986 in Bowers v. Hardwick, where it upheld a challenged Georgia statute, not finding a constitutional protection of sexual privacy.
HELD: Delivered by Kennedy, joined by Stevens, Souter, Ginsburg, Breyer; O'Connor concurringIn reversing a Texas court ruling, the Court overruled its previous decision in Bowers v. Hardwick, holding that a Texas statute prohibiting certain sexual acts--namely those between same-sex partners--violates the Due Process Clause of the Fourteenth Amendment. The Supreme Court voted 6–3 to strike down the Texas law, and Sandra Day O'Connor found that it violated equal protection guarantees.
DISSENT #1: By Scalia, joined by Rehnquist, Thomas
Scalia objected to the Court's decision to revisit Bowers, pointing out that there were many subsequent decisions from lower courts based on Bowers that, with its overturning, might now be open to doubt. Scalia also criticized the writers of the opinion for their unwillingness to give the same respect to the decision of stare decisis that some of them applied in Casey. Scalia also averred that state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers's validation of laws based on moral choices.
DISSENT #2: By ThomasThe law which the Court struck down was "uncommonly silly", but he voted to uphold it as he could find "no general right of privacy" or relevant liberty in the Constitution. He added that if he were a member of the Texas Legislature he would vote to repeal the law.
Source: Supreme Court case 03-LAWR-TX argued on Mar 26, 2003
State laws can protect gay rights.
Justice Souter joined the Court's decision on Romer v. Evans on May 20, 1996:
An amendment to the Colorado state constitution that would have prevented taking any action to recognize gay and lesbian citizens as a protected class was passed by voters in a referendum. Romer v. Evans is a landmark Supreme Court case; the first dealing with gay rights since Bowers v. Hardwick (1986), when the Court had ruled that a law criminalizing homosexual sex was constitutional.
HELD: By Kennedy, joined by Stevens, O'Connor, Souter, Ginsburg, BreyerThe court ruled 6-3 that Colorado's Amendment was unconstitutional. Rejecting the state's argument that the Amendment merely blocked gay people from receiving "special rights", Kennedy wrote, "To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint." Kennedy argued that protection offered by antidiscrimination laws was not a "special right" because they protected fundamental rights already enjoyed
by all other citizens. Though antidiscrimination laws "enumerated" certain groups that they protected, this merely served to put others on notice.
DISSENT: By Scalia, joined by Rehnquist, ThomasThe dissent states that the Colorado amendment is "a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws. That objective is unimpeachable under any constitutional doctrine." Scalia argued that the Amendment did not deny homosexuals access to the political process but merely made it more difficult to enact laws that they favored. Scalia concluded, "Today's opinion has no foundation in American constitutional law, and barely pretends to. [The Colorado amendment] does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment."
Source: Supreme Court case 96-ROMER argued on Oct 10, 1995
Hate crime sentencing without a jury is unconstitutional.
Justice Souter joined the Court's decision on APPRENDI v. NEW JERSEY on Jun 26, 2000:
Apprendi fired several shots into the home of an African-American family and made a statement that he did not want the family in his neighborhood because of their race. He was charged with possession of a firearm for an unlawful purpose, which carries a prison term of 5 to 10 years. The count did not refer to the State’s hate crime statute, which provides for an enhanced sentence [for racial intimidation]. After Apprendi pleaded guilty, the prosecutor filed a motion to enhance the sentence. The court found that the shooting was racially motivated and sentenced Apprendi to a 12-year term on the firearms count.
Held: (Stevens, joined by Souter, Ginsburg, Scalia & Thomas)
The Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt.
Concurrence: (Thomas & Scalia)
My view is that the Constitution requires a broader rule than the Court adopts. If the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact—then the core crime and the aggravating fact together constitute an aggravated crime, just as much as grand larceny is an aggravated form of petit larceny.
Dissent:(O’Connor, joined by Rehnquist & Breyer)
Our Court has long recognized that not every fact that bears on a defendant’s punishment need be charged in an indictment, submitted to a jury, and proved by the government beyond a reasonable doubt. Rather, we have held that the “legislature’s definition of the elements of the offense is usually dispositive.” The Court today casts aside our traditional cautious approach and instead embraces a universal and seemingly bright-line rule limiting the power of legislatures.
Source: Supreme Court case 99-478 argued on Mar 28, 2000
Uphold "Miranda", informing people being arrested of rights.
Justice Souter joined the Court's decision on DICKERSON v. UNITED STATES on Jun 26, 2000:
Mr. Dickerson, under indictment for bank robbery and related federal crimes, moved to suppress a statement he had made to the FBI, on the ground he had not received “Miranda warnings” before being interrogated. The Government appealed [on the grounds that] his statement was voluntary [as allowed by a Congressional law]. That court concluded that Miranda was not a constitutional holding, and that, therefore, Congress could by statute have the final say on the admissibility question.
Held:(Rehnquist, joined by Stevens, O’Connor, Kennedy, Souter, Ginsburg, and Breyer)
In Miranda v. Arizona (1966), we held that certain warnings must be given before a suspect’s statement could be admitted in evidence. Congress then enacted a rule that the admissibility of such statements should turn only on whether or not they were voluntarily made. We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress,
and we decline to overrule Miranda ourselves.
Dissent:(Scalia, joined by Thomas)
Today’s decision is not a reaffirmation of Miranda, but a radical revision of the most significant element of Miranda. Marbury v. Madison (1803), held that an Act of Congress will not be enforced by the courts if what it prescribes violates the Constitution. That was the basis on which Miranda was decided. One will search today’s opinion in vain, however, for a statement (surely simple enough to make) that [the law in this case] violates the Constitution. [Instead, the Court is adopting] a significant new principle of constitutional law, in which statutes of Congress can be disregarded, not only when what they prescribe violates the Constitution, but when what they prescribe contradicts a decision of this Court that “announced a constitutional rule.” I dissent.
Source: Supreme Court case 99-5525 argued on Apr 19, 2000
Boy Scouts should be required to accept gay scoutmasters.
Justice Souter wrote the dissent on BOY SCOUTS OF AMERICA v. DALE on Jun 28, 2000:
The Boy Scouts is a private, not-for-profit organization engaged in instilling its system of values in young people. It asserts that homosexual conduct is inconsistent with those values. Mr. Dale is an adult whose position as assistant scoutmaster of a New Jersey troop was revoked when the Boy Scouts learned that he is an avowed homosexual and gay rights activist. Dale alleged that the Boy Scouts had violated the state statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation.
Held: (Rehnquist, joined by O’Connor, Scalia, Kennedy, & Thomas)
Applying New Jersey’s public accommodations law to require the Boy Scouts to admit Dale violates the Boy Scouts’ First Amendment right of expressive association. An intrusion into a group’s internal affairs by forcing it to accept a member it does not desire [is an] unconstitutional burden. However, the freedom of association is
not absolute; it can be overridden by regulations adopted to serve compelling state interests.
Dissent:(Stevens, joined by Souter, Ginsburg, & Breyer)
New Jersey “prides itself on judging each individual by his or her merits” and on being “in the vanguard in the fight to eradicate the cancer of unlawful discrimination of all types from our society.” Since 1945, it has had a law against discrimination. The law broadly protects the opportunity of all persons to obtain the advantages and privileges “of any place of public accommodation.”
The majority holds that New Jersey’s law violates BSA’s right to associate and its right to free speech. But that law does not “impose any serious burdens” on BSA’s “collective effort on behalf of its shared goals,” nor does it force BSA to communicate any message that it does not wish to endorse. New Jersey’s law, therefore, abridges no constitutional right of the Boy Scouts.
Source: Supreme Court case 99-699 argued on Apr 26, 2000
Page last updated: Jul 13, 2015