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History is made in the U.S. Supreme Court when the right case, the right lawyers and the right time align to move the law-and the nation-in a new direction. In 2003, Ruth E. Harlow, then legal director of Lambda Legal Defense and Education Fund, knew she had the right case and legal team in Lambda’s challenge to Texas’ criminal sodomy law. So confident was she that the law would be struck down that she planned to launch a new career after the justices ruled. “I wanted to leave on a high note,” she said. She has left law for architecture. Despite their expectation of success on the Texas sodomy statute, neither she nor four other principal lawyers who worked on the case expected the Rehnquist court to issue a sweeping decision that shattered the wall isolating homosexual couples from the Constitution’s protection and respect for their relationships. The court held that the state statute making it a crime for two persons of the same sex to engage in certain intimate conduct violates the due process clause. Lawrence v. Texas, 123 S. Ct. 2472. “Ruth is really the person who guided it in its major years,” Lambda Executive Director Kevin Cathcart said. The immediate result was to invalidate the Texas law and 12 similar laws and to overturn Bowers v. Hardwick, 478 U.S. 186 (1986), which sanctioned them. In the long term, the decision seems sure to be felt for years in the law of families, work, housing and other areas of life. Harlow, 42, described by colleagues as chief strategist, meticulous brief writer, “brilliant” and “humble,” shepherded to victory the most important gay rights case in a century. She is The National Law Journal‘s lawyer of the year, a designation reflecting an individual attorney’s impact on law and society. After ‘Bowers’ After the 1986 Bowers decision, the New York-based gay rights organization Lambda began the task of challenging-in court and to the public-sodomy laws state by state with the ultimate goal of overturning them. It got a break in 1998, when John Geddes Lawrence and Tyron Garner were arrested for violating Texas’ sodomy law. They turned to Mitchell Katine of Houston’s Williams, Birnberg & Anderson. He went to Lambda Legal. “He recognized the importance of the case and realized he didn’t have the resources to handle it alone,” said Harlow. “We saw it as a nightmare for these two men, but also as an opportunity. The minute we got the phone call from Mitchell Katine, I knew this case could go to the Supreme Court. We were fairly doubtful about the Texas state courts.” Sure enough, the men were convicted. Suzanne Goldberg of Harlow’s staff first worked on the case, said Harlow. When Goldberg left Lambda, Harlow stepped in and, with Lambda attorneys Patricia Logue and Susan Sommer, finished the work in the state courts. After the Texas Court of Criminal Appeals declined to hear their case, Lambda had to decide whether to go to the U.S. Supreme Court. “We felt it was one of the best-postured cases, factually and legally,” said Logue, director of Lambda’s Midwest regional office and its interim legal director. “It was the ultimate, clean case.” There was strong feeling within the civil rights community that Lambda should not petition the Supreme Court. Some felt the court would not take the case or that, if it did, an adverse ruling could set back the movement. Besides looking to her team, Harlow sought advice about a Supreme Court petition from others with whom she had worked over the years. Her roots in the gay civil rights movement are deep. A native of Midland, Mich., Harlow took her first law job after graduation from Yale Law School with the New York employment discrimination firm Vladeck, Waldman, Elias & Engelhard. From there, she moved to the American Civil Liberties Union of New Jersey and became associate director of the national ACLU’s Lesbian and Gay Rights and AIDS projects. She joined Lambda Legal in 1996 and became its legal director four years later. “There’s no person in this country who has had more of a direct effect on the evolution of legal rights for gay people,” Logue said of Harlow. “Just look at the number of cases she has handled, the often behind-the-scenes brief writing, the arguments made. She is so grounded in all of the constitutional doctrines that come to play in our work. “Always at Lambda . . . everyone would give their opinion and then Ruth would weigh in. When Ruth weighed in, the room would fall silent. You would get this incredible distillation of what was going on legally and otherwise.” To help frame the Supreme Court petition, Harlow brought in friend and colleague William Hohengarten of Chicago’s Jenner & Block. He had worked as a law school intern in the ACLU’s gay and lesbian rights project when Harlow was a staff attorney there and later worked with her on other projects. A few weeks later, Harlow asked Jenner to be Supreme Court co-counsel. It agreed to do the work pro bono. Hohengarten said Harlow “may be the best attorney I’ve ever worked with.” He put together a Jenner team, and the five leading Lambda-Jenner lawyers began what each described as an extraordinarily collegial, collaborative effort, a highlight of their professional careers. Difficult decisions had to be made about what issues to raise in the court. Gay rights litigators had been briefing these cases as equal protection claims, said Hohengarten. Was the more far-reaching due process claim overreaching? What about asking the court to overrule Bowers? Fierce advocates “As we worked together, Ruth would fiercely advocate what she thought we needed to achieve in the brief if we were writing a section, but very carefully listen to others who were very fiercely advocating other views,” Hohengarten said. “She was never wedded to one view.” One typically difficult decision in a Supreme Court case was not so difficult for Harlow: Who would argue this potentially landmark case? She decided that Jenner partner and veteran high court advocate Paul M. Smith, an openly gay lawyer, would argue the case. Cathcart said it was a controversial decision within Lambda. Harlow said, “I knew from a long time ago, from when we started this, that when we got to the Supreme Court, we would look closely for the best person to argue it. “My strengths are in theory, writing and the framing of a case. I had never argued before the court. Paul stood up there as an openly gay man, a former Supreme Court clerk, someone they were comfortable with. And he gave gravitas to what we were all saying.” In preparation, Smith was put through the ringer, members of the team said. “It was the most intensive preparation that I have ever done,” Smith said. “There weren’t many legal or technical issues to address. It was more about how to talk to the court about the subject and how they would respond.” After arguments, the team was confident the Texas law would be struck down. “We got something more powerful than that” with Lawrence, Harlow said. Hohengarten called it the case of a lifetime. “It will make a difference,” he said. The ruling, said Harlow, happened because of the legal work by Lambda and others, but also because of the courage of gays to live openly, the justices’ own awareness of gay lives and AIDS-”an extraordinary tragedy but one that has forced people to think about gay lives.” Now Harlow has “ridden off into the sunset,” said Logue. She has left the practice of law to study architecture with an eye to creating affordable, secure and humane housing for the poor. Sommer, a classmate at Yale, coordinated amicus efforts for Lawrence. She said, “Who would have thought on that first day of law school that Ruth would lead the country to this point?” Coyle’s e-mail address is [email protected].

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