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.