Why I will miss Justice Souter

In 1987, less than a year after the Supreme Court decided Bowers v. Hardwick, then New Hampshire Supreme Court Justice David Souter joined four other justices in declaring constitutional the state's ban on adoption and foster parenting by gay men and lesbians.

The state said its reason for the law was the importance of providing "appropriate role models" for children. The court found that excluding gay men and lesbians from fostering and adopting would further that goal because "the source of sexual orientation is still inadequately understood and is thought to be a combination of genetic and environmental influences" and "given the reasonable possibility of environmental influences, we believe that the legislature can rationally act on the theory that a role model can influence the child's developing sexual identity."

In other words, a gay foster or adoptive parent might make a child gay. The court rejected research to the contrary. And, the court so took for granted that this would be a bad thing that it did not even say that it would be a bad thing. The court did struck down a provision of the law that banned gay men and lesbians from operating child care facilities.

There was a dissent that would have found the entire statute unconstitutional, so Justice Souter clearly knew the arguments on that side.

So gay rights advocates had reason to fear Justice Souter when he joined the US Supreme Court in 1990. Instead, Souter has been a reliable vote for gay rights.

It proves that people can learn and change. I think of the many people in my life whose views of homosexuality changed dramatically as they became more familiar with gay people and our lives. (My father was certainly in that category). Unfortunately, more recent conservative appointments to the Court have been vetted in a way that suggests no possibility for change at all.

But Justice Souter proves it's possible. I have every reason to believe he would vote differently on the issue of gay adoptive and foster parents today.

New Hampshire repealed its ban in 1999.