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...