by Paul M. Smith, Partner at Jenner & Block and Member of the ACS Board of Directors
As we celebrate the June 26 anniversary of the huge victory for marriage equality a year ago in Obergefell, it is good to recall that this date in June also saw two other key victories for LGBT equality – Lawrence v. Texas in 2003 and United States v. Windsor in 2013. The June 26 I will always remember most vividly was the decision day of the Lawrence case in the Supreme Court. I had had the great good fortune to have argued the case three months earlier and was present when Justice Kennedy announced the decision 13 years ago.
To understand why Lawrence was so important, you need to understand two things – the problems it solved and the foundation it provided for future progress. As to the former, what Lawrence did was overrule Bowers v. Hardwick, the 1986 Supreme Court case holding, by a vote of 5-4, that there was nothing unconstitutional about making same-sex sodomy a criminal offense. The sodomy laws were a very effective mechanism for keeping lesbians, gays and bisexuals in the closet and in a kind of second-class citizenship status. They meant that to be out and open about a same-sex relationship was to be admitting a crime. And while they were only rarely enforced directly against persons who engaged in private, adult, consensual sexual conduct, they were very often used to do things like deny people public employment or take away custody of their children.
At the time of Bowers, about half the states still had such laws on the books, and Bowers of course left those laws in place. But it did more: it erected a barrier to progress toward LGBT equality because it made it nearly impossible to argue for any sort of federal constitutional protection from discrimination based on sexual orientation.
The story of how a small group of committed activists planned for and ultimately achieved the overruling of Bowers is a template for how to run a civil rights movement. The litigation side of the movement (Lambda Legal, ACLU, NCLR and GLAD) met regularly, forming what was known as the Ad Hoc Sodomy Law Task Force. They adopted a strategy of going state to state and seeking the repeal of sodomy laws or their invalidation under state constitutions by state courts (a strategy that was repeated when it came time to demand marriage equality). The theory was that when the right time came, the Supreme Court would be much more likely to change course on sodomy laws if they were perceived as relics that had been rejected by most of the states. This effort was remarkably effective. By 2003, there were only 13 states left with sodomy laws in effect.
In the meantime, huge cultural changes were taking place. The AIDS crisis galvanized a popular movement and made the gay community much more visible. Media portrayals of LGBT characters were becoming more sympathetic. The legal profession was changing its attitudes dramatically. And the Supreme Court encouraged all of these changes with its 1996 decision in Romer v. Evans invalidating Colorado’s odious Amendment 2 that barred any form of legal protection for LGBT people.
Then came the right case at the right time – a prosecution by Texas of two men (John Lawrence and Tyrone Garner) for violation in private of the Texas Homosexual Conduct Law. When the courts of Texas upheld their convictions in 2002, the stage was set for asking the Supreme Court to revisit Bowers. Fortunately, the Court proved ready to address the issue again, and then to eliminate Bowers. Justice Kennedy’s majority opinion made clear that Bowers was wrong when it was decided, remained wrong, and should no longer remain the law of the land.
So a huge barrier to progress was washed away. But as I noted at the outset, there is another important aspect of Lawrence – the foundation it laid for further progress. Partly because of the way Lambda Legal approached and argued the case, Justice Kennedy’s Lawrence opinion was much less about sex than it was about same-sex relationships. The Court recognized that these relationships are both common and just as important as long-term different-sex relationships, whether marital or otherwise. It also held that the choice of a life partner, whether of the same sex or not, is a matter for individuals to control. The state has no basis for adopting and imposing a moral judgment opposing the formation of same-sex relationships by gay men and lesbians.
As Justice Scalia recognized in the nasty dissent he read from the bench that morning of June 26, 2003, once you make those two moves – recognizing the value of same-sex relationships and denying the state the power to block them based on its contrary moral intuitions – you have undercut any rationale for denying marriage equality to same-sex couples. And while it was a long hard slog from 2003 to 2015, Scalia was right. The arguments for defenders of laws barring same-sex couples from marrying always sounded hollow once they were deprived of morality as a basis for this discrimination. Eventually, that hollowness became clearer and clearer to more and more people, and the momentum toward marriage equality could not be stopped.
So there I was in court again on June 26, 2015, hearing Justice Kennedy announce one more victory for LGBT equality in Obergefell. It was quite a remarkable day. But contrary to how things are perceived by a lot of people, the victory did not come quickly. It was the product of decades of hard work by lots of dedicated lawyers who planned carefully and refused to give up.