With the Supreme Court potentially ready to take on another same-sex marriage case, we see many of the top lawyers in the country clamoring to be involved in whatever case reaches the Court. And not only the lawyers at the LGBT legal organizations that have been doing this work for decades. We see some of the top lawyers at premier law firms involved in these cases now. We see news shows with the plaintiffs discussing their lives and why these cases are important to them.
So it becomes difficult to imagine a time when things weren’t like this. But just 30 years ago the landscape was very different. Before the case of National Gay Task Force v. Board of Education of Oklahoma reached the Supreme Court in its 1984 term, advocates involved had a hard time finding lawyers to take the case and finding individuals who would serve as plaintiffs.
We tend to remember the 1980s as a very hostile time for LGBT rights under the law. Bowers v. Hardwick, where the Supreme Court said that any claim to LGBT rights was at best “facetious” and allowed a state sodomy statute to stand, seems to represent the whole era. Moreover, this was the time when the AIDS epidemic started and the gay community was alternately ignored and demonized. Invisible when they asked for help. Demonized when AIDS threatened non-gay communities. NGTF v. Oklahoma casts a different light on the era. If not a friendlier light, at least one that makes us reconsider our preconceived notions.
In 1977, soon after Anita Bryant succeeded in her campaign to get Dade County to repeal its gay rights ordinance, legislators in Oklahoma began to discuss a bill to restrict gay rights there. In 1978, the Helm Bill passed the Oklahoma legislature and was signed into law by the governor. The bill allowed public schools to fire or refuse to hire anyone for advocating “homosexual activity.” Despite agreeing that the law was unconstitutional, attorneys affiliated with the local ACLU were hesitant to initiate any legal proceedings out of fear that they would not be successful.
Things changed when the Briggs Initiative failed at the ballot in California in November, 1978. The Helm Bill was actually modeled off of the Briggs Initiative, even though the Helm Bill passed first. Gay Rights Advocates, a young gay rights firm in San Francisco, had prepared a court challenge to the Initiative, ready to file if and when it passed. GRA now had the legal framework ready but no case in California. So after an invitation from activists in Oklahoma, GRA agreed to help organize a challenge to the Helm Bill there.
But one of the biggest challenges was finding teachers who would agree to act as plaintiffs. In order to challenge a law in court, you need to show that the law injures you in some way. So GRA could not just walk into a federal court in Oklahoma to argue that the law was unconstitutional. They needed teachers who were actually threatened by the law. But all the lesbian and gay teachers that they could find were not willing to attach their names to a lawsuit. The risk was too great. If the lawsuit failed, the teacher would surely be fired under the new law. Even if the lawsuit succeeded, the teacher might still be fired.
Eventually, the National Gay Task Force took on the role of plaintiff in the case. NGTF provided affidavits in court, certifying that it had members who were teachers in Oklahoma, afraid of persecution under the law. The courts rejected Oklahoma’s arguments that NGTF should not be allowed to proceed on behalf of these anonymous teachers, and so the lawsuit could continue.
The big break for the case came in March 1984, when the 10th Circuit held that the core of Oklahoma’s law was unconstitutional. The 10th Circuit held that the law was too vague when it came to defining “advocating” homosexuality. Did mere mention of homosexuality under any circumstances qualify? Moreover, while the state had substantial flexibility to define the curriculum, this went way too far in regulating teachers’ speech directly. However, the 10th Circuit agreed that Oklahoma could fire teachers for engaging in “public homosexual activity.” The court noted, at least to the extent this was actually only enforced when such acts were in public, there was no question of privacy rights.
In late 1984, the Supreme Court agreed to review the case. Oral argument took place on January 14, 1985. And on March 26, 1985, the Supreme Court affirmed the 10th Circuit by an equally divided vote, 4-4. Because Justice Powell did not take part in the case, there was no binding precedent set. Laurence Tribe, a famous constitutional law scholar who would later argue Bowers v. Hardwick at the Supreme Court, argued the case. And the National Education Association, American Association of University Professors, and Center for Constitutional Rights all filed amicus briefs, showing growing interest in and support of gay rights from a broader public.
Did this partial judicial victory matter? In hindsight, it’s maybe too easy for us to say no. The Supreme Court split, so there was at best a partial signal of its acceptance of LGBT rights. And that was quickly overshadowed by Hardwick, two years later. Some might even argue that NGTF gave gay rights advocates too much confidence going into Hardwick. But along with the defeat of the Briggs Initiative at the ballot box, this did stop an incipient wave of outright witch-hunting. It did send a signal that there were at least limits to what anti gay groups could do. And even as it held that there was no right to homosexual sodomy in Hardwick, the Supreme Court never questioned the conclusion that it was unconstitutional to fire a teacher merely for discussing homosexuality.
I think this case is particularly important as a reminder of how important visibility is. With a potential win on same-sex marriage from the Supreme Court in the coming months, some people want to say “we’ve won, sexuality doesn’t really matter anymore, we’re all the same, time to pack up shop.” But I think that’s the wrong conclusion. If sexuality doesn’t matter and we’re all the same, then we’re invisible as queer people. And if we’re invisible, then we’re easier to repress. And as we should also learn from this case and its juxtaposition with Hardwick, change is uneven and races ahead on some issues while stalling and reversing on others. Any potential win on same-sex marriage does not guarantee other rights.
A federal judge in Alaska struck down the state’s ban on same-sex marriage on Sunday — clearly an urgent matter, for the court to issue an opinion on a Sunday! In a sense, this is the same-sex marriage movement coming full-circle. Alaska had one of the first same-sex marriage cases in the modern wave, post-Hawaii (Brause v. Bureau of Vital Statistics, Alaska Super. Ct. Feb. 27, 1998). And as a result, one of the first state constitutional amendments to ban same-sex marriage. This ruling was not at all surprising, after the Ninth Circuit struck down same-sex marriage bans in Idaho and Nevada last week. Alaska sits in the Ninth Circuit and is bound by that court’s opinions, efforts of the Alaska governor to continue enforcing their law notwithstanding.
But what struck me as I read the opinion was how it described the fundamental right to marriage. I’ve written before about how, as a policy matter, I find equal protection to be a much better basis for protecting same-sex marriage than the fundamental right to marriage (as a doctrinal matter, I think both are sound). My concern is that discussions of the fundamental right to marry often privilege marriage at the expense of other family forms. Marriage is protected because it is the cornerstone of our society, something that everyone should aspire to, and something that we as a nation should value above all else. Yes, of course, if marriage is something that we think everyone should aspire to, I agree that it should be available to everyone. But I worried that the classic description of the fundamental right to marry reified this idea of marriage.
So what struck me about the Alaska court’s opinion was its repeated reference to the “fundamental right to choose whom to marry” (emphasis added). Later in the opinion, it explains “the choice of whom to marry is an associational right” (citations omitted). Most importantly, it discussed Lawrence at length for the proposition that the constitution protects the right to make decisions on personal matters. While it does not explicitly cite the language of “equal liberty” from Lawrence, this citation implicitly links this idea of equal liberty to the fundamental right to marry. The tone of this opinion is much less about the need to preserve marriage as an institution, and more about choice and equality.
I’ve unfortunately been barely able to keep up with the same-sex marriage opinions as they come down, so I can’t say much about how this one compares to other recent opinions. I did check the Ninth Circuit opinion to verify though that the majority there relied on equal protection rather than due process. The Ninth Circuit explained that bans on same-sex marriage fail the test of heightened scrutiny, applicable to laws that discriminate based on sexual orientation (at least in the Ninth Circuit, thanks to SmithKline).
On Monday afternoon, the Federalist Society at Northwestern Law sent an email to the student listserv, announcing an event titled “Marriage: What it is, Why it Matters, and the Consequences of Redefining it.” The lunch event featured a speaker from The Heritage Foundation and was catered by Chick-fil-A. (Chick-fil-A has a long history of donating to anti-gay causes.) Still, my first instinct was to ignore it. “Delete.” Maybe that’s just a product of being deep in dissertation-land. The only way you survive is by focusing on what really matters and tuning out the rest.
But the listserv quickly exploded in response (If it made Above the Law, you know it had to be juicy). OUTLaw and several other student groups organized a response that included: encouraging law students to attend this lunch event wearing purple, providing food from Chipotle as an alternative to the Chick-fil-A, and organizing a discussion safe space later in the afternoon for people to come together and process their feelings and reactions to the event.
For better or for worse, my schedule prevented me from attending the event myself. But the email explosion got me thinking. I’m expecting to be a professor next year. And given my research, I will likely be invited to speak at events like this (this particular event included commentary from Andy Koppelman). So how would I respond?
The easy part is to actually speak at the event. This is what I do. It’s what I research, it’s what my teaching is on. I’m no stranger to speaking on controversial topics (whether this should still be considered a “controversial topic” is a question for another post), and I’m well seasoned at handling the questions and comments that come with it. It’s important to me to be involved in these sorts of campus events. I’m more than ready for the day when we’re done debating LGBT rights. But as long as we’re debating them, it’s a role I’m willing to fill.
But I think my more important role in an event like this comes after the event itself. It comes as a mentor and a resource for the students–LGBTQ or allies–who are hurt, upset, or just want to talk about the event. It comes in the form of being an out role model for these students. It comes in recommending career paths, internships, volunteer opportunities, and research paths that students might pursue if they are interested. It comes in recommending speakers and events that students might organize in response, and in supervising papers and research that they might take up. It comes in simply having an open office where students can talk.
I particularly like the idea of organizing a discussion safe-space for interested students. This time, student organizations took on this project. But as a faculty member, this is something I could suggest. I think it’s important that faculty not try to restrict the sort of speakers that student groups invite to campus, even if we might personally disagree with them and be tired of a debate. But I also think it’s important that we are willing to provide resources and support to students that want to respond when controversial issues do come up.
Earlier this week in class, we discussed Gay Rights Coalition of Georgetown University v. Georgetown University (1987). This case started after Georgetown denied recognition to gay student groups at the undergraduate and law campuses. The student groups sued the university, arguing that the university violated the Human Rights Act of D.C. by discriminating based on sexual orientation. The university admitted to the discrimination, but argued that freedom of speech protected its right to not recognize the student groups. As a Catholic University, Georgetown argued, it could not be compelled to recognize student groups that did not fit with its religious beliefs.
We were using this case in relation to studying the history of the ACLU. When it filed the case, the gay student group asked for support from the ACLU of the National Capital Area (NCA). The board disagreed over whether to support the students or the university and decided to stay out of the case. On appeal, both sides asked the ACLU NCA for support again. Again the board disagreed and stayed out. However, the ACLU national office decided to file a brief in the case on behalf of the gay student group. The executive director of the ACLU NCA also decided to file a brief in the case on behalf of Georgetown, acting on his own behalf and not as an ACLU lawyer. This history provides rich material for understanding how various actors have struggled with the meaning of lesbian and gay rights generally and in the specific context of religious issues. LGBT politics is rife with internal debates and this is one prime example. But to make our discussion productive, we had to avoid getting stuck on personal opinions related to the case.
I started our discussion of the case by passing out notecards to all the students. I told them I was going to read a list of six statements, and I wanted them to write “yes” if they agreed with each statement and “no” if they did not agree. After I read the statements, I would collect all their notecards, shuffle them, and redistribute them randomly. I would then re-read the statements and ask students to stand up if their new card said “yes”. This would give us an instant in-class anonymous poll. (I adapted this exercise from a presentation on a similar exercise used for abortion rights that I heard at the SSSP conference, 2013).
The six questions I used, along with how many students of 17 in class agreed with each. Georgetown should: (1) have full discretion in what student groups it recognizes (8 agree); (2) have to treat all student groups exactly the same (11 agree); (3) have to treat an atheist student group exactly the same as all others (12 agree); (4) give full recognition, funding, and access to university resources to a gay student group (15 agree); (5) give access to university rooms and resources but not have to recognize a gay student group (2 agree); and (6) have to recognize in name only but not give any resources to a gay student group (0 agree).
This activity worked really well to open discussion on the topic. We could physically see the different opinions in the room, which legitimated everyone’s voice. It diffused the need of anyone to share their personal opinion, letting us focus on how the lawyers and courts grappled with balancing freedom of speech against lesbian and gay rights. I think this activity also reduced the chance that any students would feel excluded by the discussion. In particular, I wanted to make sure that more religious students felt included in the discussion. By validating the potential religious/freedom of speech claims, I made clear that this discussion was not about saying which side was “right.”
We built a really productive discussion from this. In particular, students engaged with the first question: should Georgetown have discretion in what student groups it recognizes. Students disagreed as to whether Georgetown should be forced to recognize a gay student group, but most agreed as a moral matter that it should. But they probed how far that would reach. Should Georgetown also have to recognize a white supremacist group? If not, where and how do we draw the line? Is it okay for Georgetown to simply assert that a student group conflicts with its religious beliefs, or should a court at least be able to interrogate if those beliefs are actually sincerely held? Students also grappled with why some people might have answered “yes” to both one and two: Georgetown should have full discretion in what student groups it recognizes, but Georgetown should have to treat all student groups the same.
I think the key to this activity was making clear up front that we would be sharing the answers, but that we would be doing so in a way that was anonymous. It also required that in leading the post-activity discussion, I made sure to frame discussion by using evidence of different opinions as the starting point for discussing the relationship between freedom of speech and lesbian and gay rights. I steered us away from explaining our personal opinions and instead kept us focused on understanding this conflict. I would definitely use this activity again when the goal is to use different opinions to frame a discussion but not actually debate the “merits” of the opinions themselves.
One of the major questions in understanding the Supreme Court’s decision in Windsor (which invalidated section three of the Defense of Marriage Act) is what rationale Justice Kennedy was using. Some language in the opinion suggests that Windsor was decided purely as a matter of states rights. Marriage has traditionally been a state issue to define, and within limited exceptions, the federal government has recognized marriages performed by states (one of those limited exceptions being for immigration purposes, where the federal government still interrogates a valid state marriage, but that is not applicable here). In Windsor, Kennedy explained that the Court should be suspicious of a federal law that changed this long history of federal deference to state law on matters of marriage.
However, there is also a strong strand in the opinion of recognizing the dignity of same-sex couples. Read this way, the states rights language is less central. Windsor is more about the ongoing changes in federal equal protection jurisprudence as applied to lesbians and gays than it is about states rights.
I already believed the dignity reading was the much stronger reading of Windsor, but the recent trial court opinion in Oklahoma points out another wrinkle of the Windsor opinion that further strengthens that. In Bishop v. U.S., the federal trial court in Oklahoma held that Oklahoma’s exclusion of same-sex couples from marriage violates the U.S. constitution. Bishop explains that Windsor technically does not rule on whether states can ban same-sex couples from marrying. However, Bishop considers Windsor to be highly persuasive on whether such state exclusions violate federal constitutional rights. An extensive block quote is helpful:
Loving v. Virginia is the 1967 Supreme Court decision striking down state anti-miscegenation laws (laws that prevent interracial marriage). Loving thus explicitly overruled state authority to regulate marriage when state laws violate federal equal protection principles. The state can define marriage, but it cannot define marriage in a way that discriminates based on race. Similarly, Windsor strongly suggests–although it does not explicitly hold–that the state can define marriage, but it cannot define marriage in a way that discriminates based on sexuality.
The Windsor opinion only cites Loving once: “State laws defining and regulating marriage, of course, must respect the the constitutional rights of persons, see, e.g., Loving v. Virginia…” (Windsor at 2691). When I first read Windsor, I missed the significance of this citation. But the Oklahoma case rightly points it out. The Windsor opinion could have just as easily cited Supreme Court precedent upholding a state marriage law for the proposition that state marriage laws are still subject to federal constitutional protections. Such a citation would have placed stronger emphasis on states rights. In a case where the Supreme Court upholds a state marriage law, the note that state marriage laws are still subject to the U.S. constitution serves more as a perfunctory reminder. But by citing Loving, Windsor underlines and emphasizes the statement that state laws “must respect the constitutional rights of persons.” Thus, this citation to Loving reinforces reading Windsor as being more about dignity and equal protection rather than being about state rights.
My cousin just pointed me towards a 1946 opinion by the California Court of Appeals, reversing an earlier sodomy conviction of my great-great uncle: http://law.justia.com/cases/california/calapp2d/74/269.html. The opinion is fascinating, both rhetorically and historically. I want to highlight some elements of it and use them to think about the uneven nature of “judicial progress.”
Most striking is the fact that the opinion never mentions sodomy (or other terms such as the “infamous crime against nature”). Instead, we just learn that “The appellant was convicted by a jury of a violation of section 286, Penal Code and of section 702 of the Welfare and Institutions Code.” From there, the whole opinion is about the sufficiency of the testimony of an “accomplice” to support a conviction. Yes, an “accomplice.” The court overturned the conviction because the judge failed to explicitly instruct the jury that the witness was also an accomplice. Accomplice testimony must be corroborated in order to support a conviction. And in fact, the opinion is cited by 14 later opinions according to Westlaw, with the most recent citation being in 2005. These later citations are for various crimes, including theft, assault, and bribery. The later citations are not about sodomy or sexuality.
There is all sorts of rhetorical tension in the opinion over how to describe the “accomplice.” He is also described as the “prosecuting witness” and as a “mere victim.” Let’s be clear about what we know about the facts of the case, from the opinion: Dobkin had sex with a 16 year old man. The 16 year old “accomplice” testified in court that they had sex. Dobkin was convicted on the basis of that testimony. The judge gave the jury general instructions about accomplice testimony (that it must be corroborated) but did not tell the jury that the 16 year old was an accomplice.
By repeatedly focusing on the term accomplice, the court downplays the idea of sexual deviance. Accomplice surely still rings of criminal deviance, but it also suggests consent, and as applied to sexuality even normality. We do see some hints of sexual deviance in the use of “prosecuting witness” and “mere victim.” The victim label is particularly interesting here. The opinion explains that because the witness was 16 years old, the jury might not have know that he could also be convicted of sodomy, and therefore the jury might have assumed he was a victim. So we see a hint of the stock narrative of gay men as predators. But that narrative is only introduced as a concern over how the jury might have interpreted the case. The court focuses on the idea that the witness was an accomplice, an equal, a consenting partner.
What do we make of this? In 1946, we see an appellate court reversing a conviction for sodomy without ever mentioning the crime by name, based on the fact that the “victim” was really an “accomplice.” Surely there are potential concerns with accomplice testimony in this case, but it is in some senses shocking to see a court stressing them in 1946. Our standard narratives of judicial progress tell us of a path from repression to liberation. In this linear narrative, we would not expect to see this pro-gay opinion in 1946. Police abuse and entrapment of gay men continued to be common well into the 1970s and 1980s (and even continues today). Most of these arrests went unchallenged, despite far greater civil liberties violations than jury instructions. And when they were challenged, courts were not always concerned with the use of evidence.
Yet, despite this seemingly shocking nature of the opinion in 1946, it is in other senses entirely consistent with what we know about LGBT history and the nature of judicial progress. First, the history question. It’s only post WWII that we really begin to see consistent persecution of lesbians, gays, and bisexuals. Before that, they were tolerated in many quarters, ignored in others. Occasional persecutions of lesbians and gay men made clear that they were not fully accepted, but they were not singled out for harassment the way they later were. So it is actually historically consistent to see a more lenient treatment of sodomy in 1946 than we see in later decades. Second, the judicial progress question. “Progress” is not linear, either historically or across states. Progress occurs as multiple courts in multiple jurisdictions consider multiple questions. Every court considers myriad factors, including legal doctrine, but also other political and cultural factors. By the time a state supreme court issues a constitutional opinion on an issue like sodomy, lower state courts have probably issued numerous opinions on multiple different grounds.
This conviction is also entirely consistent with what we do know about the historical use of sodomy laws. They were typically not used against consenting adults in private. Instead, they were often used as a sort of “catch all” sex crime law when police could not otherwise prove a sex crime occurred. I don’t know enough about how this case got to court to say definitively, but it appears that underage sex was part of it (again, fascinating that the opinion never mentions age of consent). If this had been two adults, it may have never reached court. But even with an underage partner, the court of appeals threw the case out, treating it as a case of “accomplices.” Fascinating.