Learning from America’s (Possibly) First Gay Justice

No U.S. Supreme Court justice is—or has been— openly gay. However, a biographer and contemporaries believe that Justice Frank Murphy—who served from 1940-1949—was probably gay.

Why is this relevant today? Because this week, the Supreme Court will hear oral arguments on President Trump’s travel ban/Muslim ban.

Trump’s attorneys will argue that the precedent of Korematsu v. U.S. applies to this ban. They make a good point. That case involved FDR’s Executive Order 9066 that led to the internment of 117,000 Japanese residents and citizens in “relocation centers.” The Court upheld the validity of the executive order, citing national security concerns. The point of the majority ruling was that presidents have awesome constitutional powers to protect the nation from external threats.

The Court has never overruled Korematsu, even though liberal and conservative justices alike agree that the case was wrongly decided and is a blight on the Supreme Court’s record (exceeded only by Dred Scott, ruling that a slave is property, not a person).

The opponents of the travel ban will argue that it is, in reality, a Muslim ban (citing Trump's numerous tweets promising a total ban against Muslims); and that no president has constitutional authority to base any order on religious animus (hatred).

They will surely argue from Justice Murphy’s brave dissenting opinion in Korematsu. There he said that the exclusion of Japanese "falls into the ugly abyss of racism," and resembles "the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy."

In stunningly blunt language, Justice Murphy also stated:

I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting, but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. 

While serving as a justice, Frank Murphy led the effort to form the National Committee Against Nazi Persecution and Extermination of the Jews. Serving as committee chair, he declared that it was created to combat Nazi propaganda “breeding the germs of hatred against Jews.”

In other cases, he staked out path-breaking legal positions in support of African Americans, aliens, criminals, dissenters, Jehovah's Witnesses, Native Americans, women, workers and other “outsiders.”

Justice Murphy had a 40-year relationship with Edward G. Kemp. The men worked together for many years, lived together, and were bachelors.  Murphy’s biographer, historian Sidney Fine, found support in the personal letters of Frank Murphy that the two men had an intimate relationship.

The point? Homosexuals were the subject of prolonged, intense legal discrimination. Their private intimacy was criminalized. They could not serve in the military. They could not marry. The list goes on. Frank Murphy likely experienced this intensely personal form of legalized ostracism and denial of basic rights. He could not change the law for the LGBT community—but he laid the foundation for ruling that a travel ban against Muslims is unconstitutional.