OUT OF THE CLOSETS & into the Courts

THE UNIVERSITY OF MICHIGAN PRESS

Contents

List of Figures.........................................................ixList of Tables..........................................................xAcknowledgments.........................................................xiONE The Puzzle of Gay Rights Litigation................................1TWO LOS and the Emergence of Gay Rights Litigation.....................17THREE An Overview of Lambda and Its Litigation.........................27FOUR Sodomy Reform from Stonewall to Bowers............................58FIVE Sodomy Reform from Bowers to Lawrence.............................98SIX The Law and Politics of Antigay Initiatives........................143SEVEN The Case of Same-Sex Marriage....................................175EIGHT LOS and Legal Change.............................................203Afterword...............................................................219Notes...................................................................241References..............................................................269Table of Cases..........................................................283Index...................................................................289

Chapter One

Attorney Bill Thom came across a request for a gay lawyer as he was reading a magazine one day in 1972. Although he was closeted at his midtown Manhattan law firm, Thom was active in the Gay Activists Alliance, one of several gay liberation groups formed in the immediate aftermath of the Stonewall Riot. He decided to reply to the request and discovered that he was the only person willing to come forward. As Thom later recalled, the event brought home to him the need for lesbians and gay men to have legal representation. He envisioned an organization that would work to advance gay civil rights just as the National Association for the Advancement of Colored People (NAACP) Legal Defense and Educational Fund had advanced the civil rights of African Americans. Marshaling a small group of gay lawyers, he filed papers in 1972 to create the nation's first public interest law firm dedicated to the advancement of gay rights: the Lambda Legal Defense and Education Fund.

In New York, voluntary associations can only practice law if they are "organized for benevolent or charitable purposes, or for the purpose of assisting persons without means in the pursuit of any civil remedy." To ensure that Lambda's petition for incorporation as a nonprofit law firm met these guidelines, Thom copied verbatim from the application of the Puerto Rican Legal Defense and Education Fund-a group that had been granted approval by the New York courts only a few months earlier. Where the latter application said Puerto Ricans, Thom simply altered the text to say homosexuals. The completed petition stated that Lambda would engage in a number of activities designed to protect the civil rights of lesbians and gay men, including

providing without charge legal services in those situations which give rise to legal issues having a substantial effect on the legal rights of homosexuals [Puerto Ricans]; to promote the availability of legal services to homosexuals [Puerto Ricans] by encouraging and attracting homosexuals into the legal profession; to disseminate to homosexuals [Puerto Ricans] general information concerning their legal rights and obligation, and to render technical assistance to any legal services corporation or agency in regard to legal issues affecting homosexuals [Puerto Ricans]. (Quoted in In re Thom, 1972, 589)

The application was denied.

According to the three-judge panel assigned to review it, Lambda's purpose was neither benevolent nor charitable. No parallel existed, they wrote, between Lambda and the Puerto Rican Legal Defense and Education Fund. Puerto Ricans needed a legal defense fund because widespread indigence effectively deprived them of legal representation. Homosexuals were in a different situation. While they too faced widespread discrimination, the difficulties they had in securing legal representation merely reflected "a matter of taste" on the part of individual lawyers. In response to this decision, Lambda became its own first client, suing to establish its very right to exist. Thom made two major claims in his appeal to New York's highest court (which is incongruously called the Court of Appeals). Drawing on U.S. Supreme Court precedent holding "collective activity undertaken to obtain meaningful access to the courts [to be] a fundamental right within the meaning of the First Amendment," he argued that the lower court's decision infringed impermissibly on the speech and association rights of homosexuals. He also argued that the lower court's denial of Lambda's application after approving the virtually identical application of a similarly situated group raised serious equal protection considerations under the Fourteenth Amendment.

Persuaded by Thom's argument, the Court of Appeals reversed the lower court's decision and remanded the case to the lower court for a reevaluation of Lambda's incorporation papers. With little option to do otherwise, the lower court reluctantly granted the application-with one modification. Refusing to lend their approval to the purpose of encouraging homosexuals to enter the legal profession, the three judges used their discretion to strike that clause from Lambda's charter.

The Lambda Legal Defense and Education Fund was officially authorized to practice law on October 18, 1973, nearly eighteen months after the organization was first conceived. Thom deposited twenty-five dollars into a bank account, installed a second phone line in his Manhattan apartment, and added Lambda's name to his mailbox. Lesbians and gay men requesting legal assistance began phoning almost at once.

Lambda's struggle to incorporate speaks volumes about the sociolegal position of lesbian, gay, and bisexual (lgb) people in the 1970s. The notion that homosexuals had the "right" to be free from discrimination based on their sexuality seemed absurd to many. The notion is still a contested one today, but in the intervening years the issue has moved from the fringes of American social consciousness to a central position. The issues in contention have been myriad. The question of gay rights has entered areas as diverse as the bedroom, boardroom, and battlefield. The possibility of same-sex marriage, the creation of civil unions in Vermont, the "Don't Ask; Don't Tell" compromise over military service by lgb people, the referenda on antigay initiatives in several states (most notably Colorado and Oregon), and the criminal regulation of same-sex sexual conduct are among the most visible and fractious of the disputes over the extent and propriety of gay rights.

Yet they are only the tip of the figurative iceberg. The movement has also encompassed a host of other concerns, including AIDS (mandatory testing, patient confidentiality, and employment and housing discrimination); employment (hiring and firing, provision of benefits, and sexual harassment); family (custody, adoption, guardianship, inheritance, and housing); schools (teachers, curricula, library offerings, student groups, and peer harassment); immigration; prison; and even parades.

Lambda has played an important role in all of these issues. Like the civil rights and women's movements before it, the modern gay rights movement has been transformational in nature, in that it has engaged a broad range of issues that deeply affect individual living experiences. It has differed from its predecessors, however, in that the courts have been the primary locus of movement activity. In the years since Lambda's incorporation, virtually every gay rights concern has been the subject of sustained litigation, either by Lambda itself or by the handful of other gay rights law firms that have emerged.

This book is about the role of litigation in the movement for gay rights. More specifically, it seeks to answer two questions. First, under what circumstances are gay rights claims more or less likely to prevail in court? Second, what impact does winning-or losing-in court have on the real lives of lgb people? That is, does litigation matter? Both of these questions tie into large and contentious bodies of scholarly inquiry. I address the first now but hold off on discussing the second until later in the chapter.

Gay Rights in Court

Courts have varied enormously in their treatment of gay rights claims. Two Supreme Court cases dealing with the same subject-the constitutionality of sodomy laws-vividly illustrate this phenomenon.

In Bowers v. Hardwick (1986), gay rights litigators attempted to use the courts to overturn a Georgia law that prohibited oral and anal sex, even when performed by consenting adults in private. Such laws were widely considered by activists as the bedrock of discrimination against lgb people because they were invoked to justify discrimination in multiple domains, including employment, military service, housing, public accommodations, immigration, speech and association, custody, adoption, marriage, and the provision of government benefits.

Bowers was a carefully selected test case designed to build on a decade of legal and political mobilization-a decade in which seventeen states had eliminated their sodomy provisions. Lambda, the American Civil Liberties Union (ACLU), and other gay rights activists hoped Bowers would serve as the mechanism for voiding sodomy laws in the remaining states. The strategy backfired, however, when the Supreme Court upheld the constitutionality of Georgia's sodomy law by a 5-4 vote. Laws against sodomy had "ancient roots" according to the majority opinion, and against such a legal backdrop the notion that homosexuals had a right to engage in sodomy was, "at best, facetious" (Bowers, 192, 193-94).

Seventeen years later, the Supreme Court reconsidered the constitutionality of sodomy laws. Like Bowers, Lawrence v. Texas (2003) was a test case designed to build on years of political and legal mobilization. By the time Lambda appealed Lawrence to the Supreme Court the number of states with sodomy laws had dropped to thirteen; gay rights activists hoped that the high court would strike the remaining laws down. This time they prevailed. In a 6-3 decision, the Court overruled Bowers, finding that its "continuance as precedent demean[ed] the lives of homosexual persons" and stating that the gay male couple in the case were "entitled to respect for their private lives" (Lawrence, 2482, 2485).

How are we to make sense of the varying ability of Lambda and other litigators to mobilize the law on behalf of gay rights? Existing scholarship on litigation campaigns and legal change offers useful suggestions.

According to the bulk of studies examining litigation campaigns, the primary factor influencing an interest group's or social movement's success in court is its ability to mobilize organizational resources. My reading of the literature finds eight resources to be the most commonly mentioned. They are sufficient staff, preferably "expert," to handle cases in progress and to respond to new litigation opportunities (Manwaring 1962; Meltsner 1973; Sorauf 1976; Tushnet 1987); an internal organization facilitating coordination of litigation efforts (Cowan 1977; Greenberg 1977; Lawrence 1990; Meltsner 1973; Rubin 1987; Sorauf 1976); skill in forming coalitions with allies (Handler 1978; Kluger 1975; Vose 1959); the generation of extra-legal publicity (Cortner 1968; Vose 1959); adequate funding to support the litigation campaign (Cortner 1968; Handler 1978; Olson 1984; Rubin 1987; Sorauf 1976; Tushnet 1987; Vose 1959); control over the initiation and progress of litigation (Kluger 1975; Sorauf 1976; Wasby 1983); a sufficiently long time line to litigate repeatedly (Galanter 1974; Greenberg 1977; Kluger 1975; Vose 1959); and support from the Department of Justice and/or the solicitor general (Cortner 1968; Krislov 1963; Vose 1959).

It seems abundantly clear at this point that any account of Lambda's varying ability to mobilize the law on behalf of gay rights must carefully consider Lambda's access to organizational resources. But an emerging body of scholarship on the courts and legal change suggests that an account that focused solely on Lambda's ability to marshal resources would miss crucial aspects of the story. In recent years, sociolegal scholars have begun to embrace an approach known as "new institutionalism" to examine the circumstances under which legal change does and does not occur. This approach emphasizes the relationship between actors and the sociopolitical institutions within which they operate. In other words, new institutionalist approaches take as their frame of reference what Theda Skocpol (1984, 1) has called "the interplay of meaningful actions and structural contexts."

Scholars working within the vein of new institutionalism have emphasized a wide variety of structural determinants. Some have concerned themselves primarily with endogenous constraints on the courts, examining such factors as the norm of collegiality on multimember courts, the "rule of 4" for granting certiorari in the U.S. Supreme Court, and the legal requirements for filing lawsuits (Epstein and Knight 1998; Kahn 1999; Maltzman, Spriggs, and Wahlbeck 2000). Others have focused more on the constraints placed on the courts by exogenous institutions such as the legislative and executive branches, organized interests, and the population at large (Epp 1998; Epstein and Kobylka 1992; Eskridge and Frickey 1994). Still others have looked at the relationship between courts and deeply embedded social structures such as race, class, and gender (Kahn 1996; Smith 1995). Most commonly, though, scholars pick and choose several different kinds of constraints from the grab bag of institutional possibilities.

From a new institutionalist perspective, any explanation of why Lambda and other organized litigators have been more successful in some cases than in others must weigh Lambda's actions against the larger legal and political institutions within which gay rights claims are made. It follows that this account must also identify which of the myriad possible institutional factors are relevant at any particular point and articulate the ways in which these institutional factors interact both with Lambda and with each other to facilitate or retard legal change.

In this book I develop and deploy a theoretical perspective that does just that. Specifically, my legal opportunity structure (LOS) approach seeks to explain the dynamics of legal change through an examination of the institutional and sociolegal factors that shape the decisions made by legal actors. This theoretical perspective draws heavily on recent social movement scholarship on political opportunity structure (POS) and frame alignment processes. I lay out the central features of these two concepts next.

Structuring Political Opportunity

In recent years, the concept of political opportunity structure has emerged as the most promising method of integrating the emergence, progress, and outcomes of social movements with the social context in which they operate. Political opportunity structure refers broadly to the institutional and sociocultural factors that shape social movement options-by making some strategies more appealing and/or feasible than others.

Peter Eisenger coined the term in his study of protest in forty-three American cities. His argument was that the incidence of protest was related to the ability of potential protestors to "gain access to power and to manipulate the political system [from within]" (Eisenger 1973, 25). Likewise, Doug McAdam (1982) found that the rise of black insurgency in the United States in the period from 1930 to 1954 was due in large part to shifting political conditions resulting from greater black urbanization, education, and income levels. In the twenty-five or so years since its origination, the concept of political opportunity has become a staple in the study of social movements. It has been used to examine causes as diverse as the civil rights movement (Button 1989; McAdam 1982); the women's movement (Banaszak 1996; Costain 1992); the labor movement (Burstein 1991; Ruggie 1987); and the antinuclear movement (Kitschelt 1986; Meyer 1993).

One of the great strengths of political opportunity structure as a concept is its balancing of agency between state and social movement (Gamson and Meyer 1996). The political configuration of the state shapes the opportunities afforded to movements; shifts in that configuration can open or close "windows" for action. Conversely, social movements can influence the political configuration of the state; through their actions, they can forge opportunities.

A corresponding weakness of the concept is its definitional plasticity. Sidney Tarrow (1988, 430) has argued that political opportunity "may be discerned along so many directions and in so many ways that it is less a variable than a nest of variables-some more readily observable than others." The precise specification of its dimensions has varied, almost scholar by scholar. However, general agreement exists on three dimensions: access to the formal institutional structure, availability of allies, and the configuration of power with respect to relevant issues/challengers (see, e.g., Kriesi et al. 1992; McAdam, Tarrow, and Tilly 1996; Tarrow 1994).

A fourth dimension-the underlying political culture-is more contested. Some scholars argue that cultural factors play an important role in shaping social movement options, while others ignore this dimension. Still others recognize the importance of cultural factors in shaping opportunities for movement activity but argue that they are not properly elements of political opportunity.

(Continues...)

Excerpted from OUT OF THE CLOSETS & into the Courtsby ELLEN ANN ANDERSEN Copyright © 2005 by University of Michigan . Excerpted by permission.
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