Taking
Credit for Lawrence vs. Texas Decision
Landmark Case by Lambda Legal Draws Fund-Raising
Effort by HRC, Others
Washington
Blade, July 18, 2003
1408 U Street, NW, 2nd Floor, Washington, DC 20009 Email: forum@washblade.com
http://www.washblade.com/2003/7-18/news/national/credit.cfm
By Lou Chibbaro Jr.
An unofficial e-mail fund-raising on behalf of Lambda
Legal Defense & Education Fund, the group that played the lead role in the
Supreme Court case that overturned state sodomy laws, compares Lambda
Legal’s work to the skill and grace of a championship baseball team.
“This is the team that’s ready to take their home run
at the Supreme Court and use it to win the whole game,” said Lambda board
member and fund-raiser Jon Klapper.
“There is so much more work for Lambda Legal to do, and
this is where you come in,” Klapper said in his e-mail. “Now that you know
more about the recent Supreme Court victory and the organization that won it,
I hope you’ll decide to invest in all of our futures by donating to Lambda
Legal with the highest contribution you can make.”
Most gay activists and legal analysts familiar with the
Supreme Court’s June 26 landmark decision, known as Lawrence
vs. Texas, have credited Lambda Legal with putting together an
extraordinarily skillful case that succeeded in persuading the court to
declare sodomy laws an unconstitutional violation of liberty and privacy
rights.
Yet some of the dozens of gay civil rights, civil
liberties, religious, and legal and professional groups that signed on to more
than a dozen amicus or “friend of the court” briefs supporting Lambda’s
case have also begun to take credit for the decision.
In-house newsletters and Web sites for many of the groups
have touted their own amicus briefs, urging supporters to keep their
contributions flowing to help them continue the work they say is needed to
advance gay rights or civil liberties in the “post Lawrence”
environment.
The Human Rights Campaign, the nation’s largest gay
political group, was among the first to seize upon the Lawrence case
for fund-raising purposes. In a direct mail “urgent gram” dated June 27,
the day after the high court handed down its decision, HRC executive director
Elizabeth Birch urged prospective donors to “celebrate the Supreme Court
victory” by making a contribution to HRC.
“Moments of historic change demand actions of personal
resolve,” she wrote. “That’s what makes your choice to invest in HRC’s
work right now so very important.”
HRC was among the groups that submitted a joint amicus
brief with other gay rights groups.
“Every group that submitted an amicus brief deserves
some credit,” said Chai Feldblum, a gay Georgetown University law professor
and veteran gay civil rights advocate.
Feldblum wrote one of the Lawrence briefs on behalf of
the National Lesbian & Gay Law Association and 17 other gay, women’s,
and progressive legal groups.
“The bulk of the credit for putting it all together
goes to Lambda,” Feldblum said. “But this is not a case in which anyone
should feel bad about spreading the credit around.”
Kennedy cited 3 amicus briefs
A number of Supreme Court observers and press
commentators have pointed out that Supreme Court Justice Anthony Kennedy, who
wrote the majority opinion in the Lawrence case, took the unusual step
of citing three specific amicus briefs in his justification for declaring
sodomy laws unconstitutional.
The three briefs—submitted by the American Civil
Liberties Union; the Cato Institute, a D.C.-based Libertarian think tank; and
a coalition of history professors that specialize in gay studies—provided
Kennedy with much of the historic and contextual justification needed to shape
his ruling, according to Feldblum and others.
Among the history professors that helped write the
“history” amicus brief was John D’Emilio, a gay historian and author who
has chronicled much of the gay civil rights movement of the 20th century.
In his majority opinion, Justice Kennedy cites
information presented in the history brief to refute the Supreme Court’s
1986 decision in Bowers vs. Hardwick,
which upheld state sodomy laws. That decision, denounced by gay activists and
civil liberties advocates, declared that homosexual conduct had been the
subject of “state intervention throughout the history of western
civilization.” The decision also stated that “condemnation of those
practices is firmly rooted in Judeo-Christian moral and ethical standards.”
The amicus brief submitted by the history professors
refutes those assertions by presenting historical facts and evidence that
specifically anti-gay laws, including sodomy laws, did not emerge until the
late 19th and 20th centuries. Kennedy, in turn, picked up on this information
in his own opinion, which took the unprecedented step of harshly rebuking the Bowers
decision and officially overturning it.
In referring to the U.S. colonial period, the history
professors stated in their brief that sodomy laws “applied equally to
male-male, male-female, and human-animal sexual activity.”
“‘Sodomy’ was not the equivalent of ‘homosexual
conduct,’” they said. “It was understood as a particular, discrete, act,
not as an indication of a person’s sexuality or sexual orientation.”
Cato takes some credit
Roger Pilon, the Cato Institute’s vice president for
legal affairs, said his group’s amicus brief most likely helped Kennedy
justify overturning sodomy laws to himself and more conservative justices from
a conservative perspective. President Ronald Reagan appointed Kennedy to the
high court, with many legal observers viewing Kennedy as a traditional
conservative.
The Cato Institute, a generally conservative think tank
that advocates for less government intrusion into individual lives, argued in
its brief that sodomy laws violate individual liberty, a fundamental right
that the Constitution should protect, Pilon said. Pilon said Yale University
law professor William Eskridge, who is well known for his conservative legal
views, wrote the Cato Institute’s amicus brief, and that he and the Cato
Institute should “rightfully” take some credit for the Lawrence
decision.
James Essecks, director of litigation for the ACLU’s
Lesbian & Gay Rights Project, said he and Harvard University law professor
Lawrence Tribe wrote the ACLU’s amicus brief. Tribe took the lead in arguing
on behalf of Michael Hardwick the gay man whose sodomy conviction under
Georgia law was upheld in the Supreme Court decision of Bowers vs. Hardwick,
which was overturned by Lawrence.
“We also addressed the history of sodomy laws,”
Essecks said. “We pointed out that enforcement of these laws was almost
always based on public sex, sex for money, sex with minors, or forced or
coerced sex.” He said the ACLU brief argued that, contrary to the claims in
the Bowers decision, the U.S. does not have a lengthy history of
prosecuting acts of consenting sex between adults in private.
Lambda officials have said much of the credit in the Lawrence
case should go to John Lawrence and Tyron Garner, the Houston Texas gay men
who brought the case to the Supreme Court. The two had appealed their
conviction for violating the Texas “homosexual conduct” law after deputy
sheriff’s barged into Lawrence’s apartment and arrested the two for
engaging in sodomy in the privacy of the home.
Veteran gay activist Ray Hill, a longtime advocate for
the rights of ex-offenders, said he should be given some credit for prodding
Lawrence and Garner, who had not been active in gay rights causes, to “stand
up and fight” for their rights. Hill said he knew Lawrence and Garner before
they became famous and played a role in urging them to make an issue of their
case.
Others have said Garner’s disgruntled ex-boyfriend
should be given credit, in a backhanded way, for triggering a chain of events
that started the case. The ex-boyfriend told police that someone with a weapon
had entered Lawrence’s apartment, prompting police to enter the apartment
and observe Lawrence and Garner having sex. Had the former boyfriend, who was
later convicted of making a false police report, not contacted police, the
landmark Lawrence case might never have happened.
Lambda Legal officials have declined to discuss this
aspect of the case, saying they have chosen not to intrude into Lawrence and
Garner’s private affairs.
“This was a case that involved a large number of people
and organizations,” said Feldblum, the Georgetown University law professor.
“As far as I’m concerned, every single group and person putting out a
fund-raising letter deserves to do it.”
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