My legal career had the distinct fortune of beginning with clerkship with the Honorable Frank M. Johnson, Jr., the judge who, in the Middle District of Alabama, provided the crucial second vote (in a 2-1 decision) in striking down segregation in the buses of Montgomery and allowed Martin Luther King to march from Selma to Montgomery. Listen to Martin Luther King say in a megaphone that Judge Johnson had just ruled that marchers had a "legal and constitutional right" to march (at minute 3.10 of the video). At the time I clerked he had been elevated by President Carter to the US Court of Appeals for the 11th Circuit.
In hindsight, these decisions look obvious but at the time, Judge Johnson paid a heavy price for them. In addition to the need for protection from the US Marshals because of the constant threats, a cross was burned on his lawn and his mother's house was dynamited. The story is that President Nixon wanted to appoint Judge Johnson to the US Supreme Court but that his civl rights decisions were so unpopular, politicians from the south intervened and convinced Nixon to do otherwise. It was a price he was willing to pay and required considerable courage.
Less known, however, is that Judge Johnson showed the same courage with respect to gay rights. Judge Johnson wrote the lower court opinion in Hardwick v. Bowers, 760 F.2d 1202 (11th Cir. 1985). He, along with his friend, Judge Tuttle, struck down the anti-gay sodomy law in Georgia. The story I heard from one of his later clerks was that he personally turned to Judge Tuttle in conference and said that he saw nowhere in the Constitution that made this practice illegal. Judge Tuttle agreed. Judges Johnson and Tuttle (in an opinion written by Judge Johnson) became the first federal appellate court to strike down this type of law.
The Supreme Court would later reverse the decision in a 5-4 decision. See 478 U.S. 186 (1986). Justice Powell, the deciding vote in the case would later acknowledge that he had made a mistake in voting to overturn Judge Johnson's decision.
The US Supreme Court eventually reversed its decision in Bowers in Lawrence v. Texas, 539 U.S. 558 (2003). Judge Johnson didn't live to see the ultimate vindication of his lower court opinion in Bowers, having died in 1999. But Mrs. Johnson did and in a conversation with her a year or so after the decision, she would read to me the sentence in Lawrence where the Court said that "Bowers was not correct when it was decided, and it is not correct today." For her, that sentence could just as easily have been rewritten to say that Judge Johnson was right then and was right now.
All of this comes back with the decision over the weekend in New York to allow gay marriage. New York has taken a mighty step forward in eliminating a government sanctioned form of discrimination. The NYT had an insightful piece on the behind the scenes process that resulted in the action. What the piece makes very clear is that approval as not preordained but required the extraordinary intervention from a number of people, particularly the governor, Andrew Cuomo.
In an era where politicians are mostly criticized for their self serving behavior, Governor Cuomo showed courage and leadership. I can't help but think that his behavior is reminiscent of what Judge Johnson would have done had he been in the same position.