The paths of two, longtime legal advocates in the battle for gay rights soon may converge in the U.S. Supreme Court, and neither is a stranger to high-stake battles in that arena.
Now that the United States and House Republican leaders have asked the justices to review the constitutionality of section 3 of the federal Defense of Marriage Act, the New England-based Gay & Lesbian Advocates & Defenders (GLAD) and the national Lambda Legal are preparing their responses, which are due Aug. 2, unless more time is requested and granted.
Both organizations are involved because the United States’ petitions for review ask the Court to consider rulings by two different lower courts. The U.S. Court of Appeals for the 1st Circuit in May held in Gill v. Office of Personnel Management that section 3 unconstitutionally denies equal protection to legally married same-sex couples in Massachusetts. And in February, a federal district judge in California in Golinski v. Office of Personnel Management also struck down section 3 on similar constitutional grounds.
Section 3 of the act, which was signed into law in 1996 by President Bill Clinton, defines “marriage” as “only a legal union between one man and one woman as husband and wife,” for all federal purposes, including the provision of federal benefits. The definition affects more than 1,000 federal laws, according to the Government Accountability Office. The couples in both cases challenging section 3 are legally married under their state laws and argue that section 3 discriminates against them in violation of the Fifth Amendment guarantee of equal protection.
Road to the Supreme Court
For GLAD, which represents the Gill plaintiffs, and for Lambda Legal, counsel to Karen Golinski, the road to the Supreme Court has been long but well planned.
Golinski, a 9th Circuit employee, first tried to enroll her spouse in the court’s health plan in 2008. The Office of Personnel Management twice defied orders by Chief Judge Alex Kozinski to enroll her spouse, and in 2010, Lambda Legal filed suit on her behalf in the Northern District of California.
The Gill plaintiffs — eight Massachusetts couples and three individuals — filed suit in 2009. They include federal employees, federal retirees, the surviving spouse of a U.S. congressman, Social Security recipients, U.S. passport holders and parents of minor children.
Lambda Legal, founded in 1973, was the first national legal organization dedicated to achieving gay and lesbian rights. “It started with volunteer lawyers,” said Jon Davidson, who has been with the organization for 17 years, the last seven as legal director. “But it has grown tremendously.”
Lambda Legal, he said, has 19 full-time lawyers in five offices around the country: New York is headquarters and the oldest office; the Los Angeles office handles legal matters in the west; the Chicago office manages the Midwest; the Atlanta office takes care of matters in the southern states, and Dallas oversees the south-central region.
The organization has a staff of about 90, who are involved in not just legal affairs, but also education, organizing, public affairs and internet communications, said Davidson.
In addition to filing amicus briefs in a number of cases, Lambda Legal took three major cases to the Supreme Court, winning two and losing one. Its lawyers were co-counsel with the American Civil Liberties Union in Romer v. Evans. In a 6-3 decision in 1996, the justices struck down Amendment 2 of the Colorado Constitution. The amendment barred any judicial, legislative, or executive action designed to protect persons from discrimination based on their “homosexual, lesbian, or bisexual orientation, conduct, practices or relationships.”
Defeat followed that high point in the high court. In Boy Scouts of America v. Dale, the justices in 2000 ruled in a 5-4 decision that applying New Jersey’s public accommodations law to require the Boy Scouts to readmit a gay assistant scoutmaster — James Dale — violated the Boy Scouts’ First Amendment right of expressive association. Former Lambda Legal attorney Evan Wolfson represented Dale.
But the organization rebounded with a landmark victory in 2003 in Lawrence v. Texas. A 6-3 Court held that Texas’ criminal sodomy law violated the due process clause. The justices also overruled their 1986 decision to the contrary — Bowers v. Hardwick. Paul Smith of Jenner & Block argued Lawrence for Lambda Legal.
Small and steady
GLAD, founded in 1978, started as a very small community organization which operated out of the office of its founder, John Ward, said legal director Gary Buseck.
“He did primarily all of the work,” said Buseck. “GLAD didn’t hire an attorney — a part-time attorney — until 1984, and it was for HIV-related work. That became full time the next year. We didn’t hire another until 1990 when Massachusetts passed its sexual orientation non-discrimination law, and then we hired another attorney in 1996. We were an organization that grew very slowly.”
However, he added, “enormous change” followed GLAD’s victory in the 2003 case, Goodridge v. Department of Health by the Massachusetts Supreme Judicial Court. The court held that excluding gay and lesbian couples from civil marriage violated the state constitution.
“In 1984, the budget was $30,000 and half of it was the executive director’s salary,” said Buseck. “In 2003, the anticipated budget was $1.4 million. Within 12 months of the Goodridge decision, it was $2.8 million. It caused enormous change within the organization in terms of financial support and the work we do.”
GLAD works in six New England states with a staff of eight attorneys. “We are back to more steady, incremental growth,” said Buseck. “Over the years, we’ve tried to keep all balls in the air on all relevant issues in the six states. Given modest resources, I think we’ve done a pretty good job. Now people tend to think of us as a marriage organization, but we’re still doing HIV, family, and youth related work.”
GLAD’s founder, John Ward, was the first openly gay lawyer to argue in the U.S. Supreme Court, said Buseck. The case was Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston (GLIB). GLIB tried to march in Boston’s St. Patrick’s Day Parade, which was organized by a veterans’ group. GLIB won a state court order permitting it to do so. But in 1995, a unanimous U.S. Supreme Court reversed, holding that to require private citizens who organize a parade to include a group expressing a message that the organizers do not wish to convey “violates the fundamental First Amendment rule that a speaker has the autonomy to choose the content of his own message and, conversely, to decide what not to say.”
Three years later, however, GLAD won a 5-4 ruling in Bragdon v. Abbott which held that HIV is a “disability” under the Americans with Disabilities Act. The case was remanded to assess whether treating this particular HIV-positive person for dental reasons posed a direct risk to the dentist or others.
Both Buseck and Lambda Legal’s Davidson said they could not begin to describe how the landscape for finding help in their work from major law firms has changed in the last two decades.
“I do not even know how to describe the difference today,” said Davidson. “It was very hard to find any of the major law firms for a long time in Lambda’s earlier existence that were willing to take on gay rights cases. They were concerned it might be controversial and how would their clients like it, or lawyers in the firm would not necessarily agree with our position.
“Right now, we are very fortunate that many firms volunteer and are eager to work with us. It’s great because we’re able to draw on all sorts of expertise. We have about 70 cases and there’s no way we could do that without the assistance of major law firms.”
In the Golinsky case, Morrison & Foerster is partnering with Lambda Legal.
GLAD had a similar experience in its early existence. In 1985, then-Massachusetts Governor Michael Dukakis heard that two foster children had been placed with a gay couple and ordered them removed, said GLAD’s Buseck.
“We brought a lawsuit and we tried to find a firm to help us,” he added. “There was not a major Boston firm to help us. Compare that to 2002 when we were putting together amicus briefs for Goodridge and it seemed like every major Boston firm wanted a piece of it.”
Foley Hoag is the primary local co-counsel in the Gill case, he said, and has been involved the longest with GLAD. Boston’s Sullivan & Worchester, he added, has a major tax practice and has contributed “enormously” to the tax issues in the case.
GLAD also wanted a Washington, D.C., firm, Buseck said, “because we wanted to engineer any DOMA case from the Supreme Court backwards.” Buseck said that a relationship with Jenner & Block “blossomed over the years,” and that Jenner partners, Paul Smith, and before Smith, William Hohengarten, have been indispensable. Also in D.C., Kator, Parks & Weiser has advised GLAD on the pension rights issue in the Gill case.
“We wanted to be sure we were crafting a case that appeals to enough members of the Supreme Court,” he said. “At this point, I feel like we do. We have a case on DOMA that sets up very well for this particular court.”
The justices do not have to grant review in the DOMA cases, but most court observers believe they will.
“There are now four courts that have found section 3 unconstitutional,” said Davidson. “The DOMA case focuses significantly on what is the interest of the federal government in not respecting certain marriages that a state allows. It implicates federalism issues that some conservatives may be interested in. Where does the federal government have the power to start regulating family law?
Marcia Coyle can be contacted at email@example.com.