August 2003
They Did What?
by Lindsay Thompson, Bar News Editor
Alice laughed. “There’s no use trying,” she said: “one can’t believe impossible things.”
“I daresay you haven’t had much practice,” said the Queen. “When I was your age, I always did it for half-an-hour a day. Why, sometimes, I’ve believed as many as six impossible things before breakfast.”
— Lewis Carroll, Through the Looking-Glass (1872)
Most Americans, gay and straight, have probably felt like Alice recently. The Ontario Court of Appeals joined Quebec’s and British Columbia’s in declaring that a federal law’s definition of marriage violated Canada’s Charter of Rights and Freedoms. Gay and lesbian couples have married there, some of them American. The U.S. Supreme Court found laws making sex between people of the same gender criminal to be unconstitutional and, in acting, strengthened the privacy rights of all Americans. Wal-Mart, the world’s biggest corporation, barred its 1.3 million employees from practicing discrimination on gay and lesbian colleagues.
Justice Antonin Scalia—in a characteristically robust dissent—argued that the Supreme Court usurped the role of voters and elected legislatures in its decision. “Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining states that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in the absence of democratic majority will is something else.”
Aside from a few states’ reform of sex-crime laws in the early 1970s, however, what caused the number of states criminalizing consensual same-sex conduct to decline is the same thing that led to Lawrence v. Texas: good lawyering, state after state. The Supreme Court wasn’t sitting in its marble palace, fingers drumming impatiently, waiting for a gay-rights case to act up over. The lawyers who won these cases, and the Canadian marriage cases, played by the rules set by the majority. Just as lawyers worked out a long-term plan in the 1940s to dismantle statutory segregation one lawsuit at a time (and were similarly denounced for overturning the natural order of society), other lawyers developed the legal arguments and brought the appeals that culminated in the Texas decision. They just outlawyered their opponents.
Like the civil rights lawyers, and the lawyers who defended Japanese Americans in the internment cases David Shayne describes in this issue, the lawyers who work on gay-rights litigation are brave. Activism can get you fired. Even among gay-friendly law firms, few make the fact public. When an Illinois firm decided to create and market a practice group for gay people a couple of years ago, managing partners in other firms warned them off: it will cost you business, they said. Firms don’t make money on such cases. They’re almost always pro bono, or funded by donations to groups like the ACLU. Lawyers are a conservative, change-resistant lot. Mentioning gay rights in Bar News is one of the few things that will produce even more—and more vehement—letters than mentioning animals rights.
What’s remarkable about these events is how many Washington lawyers have had a hand in making the impossible happen. A legislator, WSBA member Peter Francis, wrote the law that repealed this state’s sodomy laws 30 years ago. Lawyers with the Northwest Women’s Law Center, among them WSBA member Rosemary Daszkiewicz, briefed and argued the appeal that led the Montana Supreme Court to unanimously overturn that state’s sodomy laws a decade ago.
Now celebrating its 30th anniversary, the Lambda Legal Defense and Education Fund’s board has led and funded the Texas case and other equal-rights cases; among its past and present board members and chairs are WSBA members Steve Davis, Suzanne Thomas, Jamie Pedersen, and Victor Flatt.
Seattle’s Pride Foundation has, similarly, played by the rules in the business world. It buys stock in public companies and proposes shareholder resolutions to bring equal employment rights to employees. WSBA member Zack Wright sits on the foundation’s board, which is celebrating its success in persuading Wal-Mart to change its policies. Most of us, when we want to see courageous lawyering, settle for watching “To Kill a Mockingbird” again. What’s most impressive is that gay and lesbian lawyers who worked on these cases are in many respects strangers to the law they took an oath to uphold. Yet work they do, often under withering attacks from judges, politicians, and other lawyers.
The sky will not fall because of the impossible things happening around us. We’re going to thrash it out, pro and con, in the courts, legislatures, the media, and the voting booth. It wasn’t the homosexual agenda Justice Scalia says holds sway over America that carved “Equal Justice Under Law” into the portico of his office building. Our job as lawyers, by our own best lights, is to hold the legal system to the standard it has set for itself.
Lindsay Thompson edits Bar News. His views are his own. E-mail him at tradelaw@thompson-law.com.
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