Best gay blog. Towleroad Wins Award
« March 7, 2012 | Main | March 9, 2012 »


Marriage Litigation Strategy: From John Lawrence to Kristin Perry


FlagrantconductWith certain gay media outlets fanning its flames, a false fracas is unfolding about Lawrence v. Texas. It is creating an issue out of nothing and, as a result, it is obscuring the undisputed good work done by Lambda Legal, the American Foundation for Equal Rights (AFER), and other legal organizations to win our rights through impact litigation. 

The excellent Dahlia Lithwick takes to The New Yorker to review Professor Dale Carpenter's new book, Flagrant Conduct, which tells the sometimes-dramatic, sometimes-licentious, sometimes-mind numbingly arcane saga that precipitated the seminal decision in Lawrence v. Texas, a foundational case for every civil rights victory we will ever win. But, Ms. Lithwick took a scholarly book and learned the wrong lesson.

Professor Carpenter tells a story that most people do not know: about how the story started with four men drinking in an apartment, how policemen stormed into Lawrence's apartment looking for a gun but found none, how the worst thing the police saw was a lewd picture of James Dean, how Lawrence insisted on his innocence but pleaded "no contest" to challenge the anti-sodomy law, and how the men were poor, drunk, sometimes homeless, and probably not in love. But, although interesting, the particular personal histories of John Lawrence and Tyron Garner are irrelevant: Lawrence will always be a story about love because even if Lawrence didn't love Garner, their case legitimized gay love in the eyes of the law.

Ms. Lithwick also seems to imply that a lawyer's strategy to make the most effective arguments possible borders on deception or, in some way, makes the ultimate victory less wholesome. That is surprising coming from a lawyer, who should know that every case -- from one that challenges a ban on marriage recognition for gays to one that seeks $500 in medical expenses for a slip-and-fall -- has the same strategy: win.

Finally, she also misunderstands what gay rights cases are really all about. As I have argued many times, the traditional libertarian meme, "Get the government off our backs," will only get us so far. Texas may have had no business in Lawrence's bedroom that night in 1998, but our quest for the freedoms of intimacy, identity expression, and marriage is not a yearning for a small government that lets us do whatever we want behind closed doors; rather, it is a quest for social inclusion, societal honor, and the moral worth of a gay life's love.


Lawrence_garnerIt is no secret that John Lawrence and Tyron Garner were not dating. Nor was it ever a secret that Mssrs. Lawrence and Garner had checkered pasts, including arrests and histories of drunkenness. To this day, none of us are sure what happened: two of the four officers called in thought they saw sex, but each remembered a different type of sex, and three officers remembered a lewd picture of James Dean on the wall. 

In his book, Professor Carpenter starts from these undisputed facts and wonders: if the plaintiffs weren't in love and may not have even had sex, how did their case turn into one about sodomy and intimate relationships? There were a number of factors: victims of anti-sodomy laws were hard to come by, so it was difficult to find pristine plaintiffs; the sheer luck that a gay courthouse worker flagged the sodomy arrest and chatted about it until it got back to a gay activist with legal connections; and, the slowly changing popular view of gay persons. Professor Carpenter discusses the role each played.

But, as Ms. Lithwick describes in her review, the most important factor was Lambda Legal, caricatured as sweeping in to Lawrence's defense like Tabatha Coffey turning a grungy outhouse into a Beverly Hills' salon: this "imperfect test case could be made over into something more than serviceable." Ms. Lithwick goes on:

Lawrence and Garner understood that they were being asked to keep the dirty secret that there was no dirty secret. That's the punch line: the case that affirmed the right of gay couples to have consensual sex in private spaces seems to have involved two men who were neither a couple nor having sex. In order to appeal to the conservative Justices on the high court, the story of a booze-soaked quarrel was repackaged as a love story. Nobody had to know that the gay rights case of the century was actually about three or four men getting drunk in front of a television in a [Texas] apartment decorated with bad James Dean erotica.

The suggestion that this case had to "made over" in order to succeed implies that Lambda Legal was performing some kind of morally-suspect deception, creating an issue where none might have existed and whitewashing its clients into the hearts of history. To succeed, Lawrence required a "litigation strategy ... [that] was deliberately framed to highlight the need to decriminalize homosexual conduct as a means of recognizing and legitimizing same-sex 'relationships' and 'families.'" Ms. Lithwick's use of quotes around the words "relationship" and "families" suggests that the disconnect between the Lawrence/Garner reality and Lambda Legal's story reeked of deception. After all, Tabatha Coffey can put a nice coat of paint on a poorly run business and, at the end of the day, all you have is a shiny, poorly run business about to fail. 

My response to Ms. Lithwick: You're missing the point.

Lambda Legal took a case that needed to go to the Supreme Court: the continued acceptance of criminal anti-sodomy laws under Bowers v. Hardwick gave legitimacy to every piece of anti-gay legislation and every instance of anti-gay discrimination. It needed to go. And, Lambda attorneys crafted the best legal strategy to win: they chose the right lawyer, they told the right story, and argued the right cases to appeal to swing Justices. And, this is what every lawyer does if he wants to win. Law students learn to frame the facts in such a way that favors your client; you are, after all, telling a story. So, tell your story, because if the judge believes your story, your conclusions follow. That is why every brief starts with a facts section -- the sides are arguing about what really happened, what the case is really about. As Kevin Cathcart, Executive Director of Lambda Legal, noted in The Huffington Post, "[t]he issue in Lawrence v. Texas was not about what was going on in John Lawrence's bedroom, but rather about the conduct of the government and the unconstitutionality of the law that authorized its actions." To conclude anything else is to miss the forest for the trees.

So what if Lawrence and Garner weren't in love? The law at issue criminalized every gay person who was in love. So what if Lawrence and Garner hadn't actually had sex that night? The law at issue made criminals out of every gay person who wanted to express his or her love. So what if Lawrence and Garner weren't perfect characters? The lawyer's job is to make every client into the perfect one.

Impact litigation seeking civil rights is always about more than a given case's plaintiffs -- just ask Kristin Perry and Sandra Stier, and Paul Katami and Jeff Zarrillo, the plaintiffs in Perry v. Brown. These four individuals, though brave and selfless for putting themselves in this position, are not perfect, nor do they have to be. But, their legal story is just as much about love as Lawrence's and Garner's was not because they are actually in love, but because the goal they seek -- marriage recognition -- is about love and family. The real deception, then, would be to couch our fight for marriage recognition in any language other than love.


Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

Posted Mar. 8,2012 at 8:30 PM EST by in Ari Ezra Waldman, Books, Gay Marriage, Lambda Legal, Law - Gay, LGBT, News | Permalink | Comments (26)

Utah Passes Abstinence-Only Sex Education Bill; Bans Discussion of Homosexuality and Contraceptives: VIDEO

Utah's legislature gave final passage this week with a Senate vote of 19-10 to an abstinence-only sex-ed bill that forbids discussion of homosexuality even if the student asks, FOX13 reports:

UtahAfter the new bill goes into effect, the teaching of sex education in Utah classrooms has to be about not having sex before marriage and fidelity within marriage. Teachers cannot advocate the use of contraceptives anymore and they cannot talk about homosexuality, even if asked by a student.

HB 363 would also allow any Utah school to opt out of sex education and would ban students from talking to their teachers about pre-marital sex.

“My problem is that we’re having essentially complete strangers teaching our children, who frankly we don’t know who they are and exactly what they’re teaching, with the most sensitive issues that do belong in the home,” said one Republican Senator during Tuesday’s floor debate.

Opponents of the bill, most of them Senate Democrats, say HB 363 is out of touch with reality.

Watch FOX13's report on the debate and passage, AFTER THE JUMP...

Posted Mar. 8,2012 at 7:39 PM EST by in Censorship, Education, News, Utah | Permalink | Comments (54)

Get Your Grind On: VIDEO


Apt. #7, a time-lapse of still photos shot over a six month period, AFTER THE JUMP....


Posted Mar. 8,2012 at 7:20 PM EST by in News, Photography, Time-Lapse | Permalink | Comments (16)

Colin Farrell Speaks Out Against Homophobic Bullying

Colin Farrell has released a statement in support of 'Stand Up! Don’t Stand for Homophobic Bullying' and a school awareness campaign launched last Friday by BeLonG To, an Irish LGBT youth organisation.

Said Farrell:

Farrell"If there was one great wish I have for my country - for a land that I love and a people I so revere, it would be that school bullying were a thing of our past.

So much has befallen us in our shared history as a people. The harshest of these times have threatened to take our dignity, or scald our hearts into closing.

“Most of our great trials, from soiled land to the institutionalized abuse of trust and power, were inflicted upon us, whether by nature or the power corrupt. Now with bullying, there is a clear choice and the choice is ours.

“Each individual, as a member of his and her community, must Stand Up! In the face of this appalling brutality that plagues our schools. In effect, bullying is no less than the systematic doling out of pain upon the innocent.  It is literally laughing in the face of somebody as they fall into increasingly grave danger. It's not my place to draw parallels, but we have had enough of such hardships. The world has.

“Whether it be the attacking of Gay students, which I witnessed first hand happening to my own brother, or students who are in the minority as a result of race or religious beliefs or any other such characteristic that separates them from 'the norm', it is all wrong and has no place in a just and compassionate country such as I know Ireland to be.  We have always been praised as being the friendliest and most welcoming race in the world.  My wish is for us to prove it daily, in the school yards and playgrounds across this Great Land of Ours."

Posted Mar. 8,2012 at 6:43 PM EST by in Bullying, Colin Farrell, Ireland, News | Permalink | Comments (16)

Towleroad Guide to the Tube #1079

VIVA LAS VEGAS: NASA tracks its growth since 1972.

BLACK PARTY NYC: The trailer.

CUPCAKE ATM: Didn't these used to be called Automats?

ANIMATED GIFS: The birth of a medium.

For recent Guides to the Tube, click HERE.

Posted Mar. 8,2012 at 5:20 PM EST by in Las Vegas, News, Towleroad Guide to the Tube | Permalink | Comments (4)

News: Solar Storm, Adam Levine, Liberia, Josh Hutcherson

RoadBrett Ratner and Tom Ford team up with GLSEN for anti-homophobia PSA competition.

SunRoadLargest solar storm in five years hits Earth: "The massive cloud of charged particles could disrupt utility grids, airline flights, satellite networks and GPS services, especially in northern areas. But the same blast could also paint colorful auroras farther from the poles than normal." Five facts you should know.

RoadVIDEO: Michigan woman terrorized by 'Godzilla' turkey.

RoadAdam Levine is launching a fragrance, called 222: "Adam is a performer with tremendous charisma, both on stage and on TV. Endeavoring to capture that in a bottle has thus far been very exciting and we're certain the final products will be even more so."

RoadLesbian candidates Rep. Nickie Antonio and Sandra Kurt advance in Ohio primaries.

RoadMore than 100,000 have signed a petition asking Obama to sign executive order banning LGBT workplace discrimination.

RoadIowa anti-gay activist Bob Vander Plaats says 7th Annual Iowa Governor’s Conference on LGBTQ Youth discriminates against straight students: "The governor and his staff attempt to validate the governor’s full support of this conference by stating the conference is about anti-bullying, not about advancing homosexual behavior. Really? If this is sincerely the case, then this conference itself discriminates and excludes the majority of the students who are frequently bullied within our schools. Statistics show the vast majority (around 90 percent) of bullying incidents are because of race, physical attributes and other categories, not because of sexual identification."

RoadName That Tune returning to TV?

RoadLambda Legal's Kevin Cathcart responds to the New Yorker article on Lawrence v. Texas I linked to in the news round-up yesterday.

IsonRoadDean of St. Paul's Cathedral: embrace marriage equality.

RoadJake Gyllenhaal to play opposite Gary Oldman in Motor City?

RoadMinnesota state Senator Scott Dibble slams Republicans for rejecting domestic partner bill: “This was a reasonable, compassionate amendment that simply would have ensured all Minnesotans have the ability to tend to their solemn responsibility and carry out the wishes of the person they love, during the most difficult circumstances–at the end of life. This was a simple choice about acting with humanity and affording families a measure of dignity; it’s unfortunate that Republicans tarnished it with politics.”

RoadHunger Games' Josh Hutcherson makes surprise appearance at L.A. Gay-Straight Alliance meeting.

RoadNational Enquirer dogs Warren Beatty over treatment of transgender son.

RoadRush Limbaugh has lost 45 advertisers and counting...

KitschRoadTaylor Kitsch channels James Dean in GQ.

RoadI won't be your gay friend if...

RoadMichele Bachmann warns that Obama could mandate a 'one child one family' policy: " isn't farfetched to think that the president of the United States could say, we need to save healthcare expenses, the federal government will only pay for one baby to be born in the hospital per family, or two babies to be born per family. That could happen. You think it couldn't?"

RoadPatrick Burke answers questions about his 'We Can Play' NHL anti-homophobia campaign on Reddit.

RoadGay activist escapes 'mob' in Liberia: "It can be recalled that recently, Mr. Ponpon escaped a mob action after appearing on the Truth Breakfast Show on Truth FM to continue his gay rights advocacy. The mob, who gathered in their numbers before the radio station, threatened to mob him to 'death'. The mob said they were fed up with Mr. Ponpon's advocacy for gay rights here. His escape from the scene was facilitated by police officers dressed in riot gears."

Posted Mar. 8,2012 at 3:50 PM EST by | Permalink | Comments (12)


« «