This year’s DOJ Pride theme is Decades of Progress Working Together with our Partners and Allies to Ensure Equality for All. So it’s a particular honor to be sharing the stage with John Elias, whom I have known for decades now; with Robbie Kaplan, the partner at Paul Weiss with whom I worked together on United States v. Windsor, and with Attorney General Holder, one of the most powerful allies we have ever had in seeking equality for all.
I’ve been involved in four decades of gay rights litigation at the Supreme Court, and I thought I would use my time here to reflect on that litigation and tell you a couple of stories. But before I do, I’m going to share a poem that expresses the lesson I want to leave with you. It’s The Low Road, by Marge Piercy:
What can they do to you? Whatever they want.
They can set you up, they can bust you, they can break
your fingers, they can burn your brain with electricity,
blur you with drugs till you can't walk, can't remember,
they can take your child, wall up your lover. They can do anything you can't stop them from doing.
How can you stop them?
Alone, you can fight, you can refuse, you can take what revenge you can
but they roll over you.
But two people fighting back to back can cut through a mob,
a snake-dancing file can break a cordon, an army can meet an army.
Two people can keep each other sane, can give support, conviction, love, massage, hope, sex.
Three people are a delegation, a committee, a wedge.
With four you can play bridge and start an organization.
With six you can rent a whole house, eat pie for dinner with no seconds, and hold a fund raising party.
A dozen make a demonstration.
A hundred fill a hall.
A thousand have solidarity and your own newsletter;
ten thousand, power and your own paper;
a hundred thousand, your own media;
ten million, your own country.
It goes on one at a time,
it starts when you care to act,
it starts when you do it again and they said no,
it starts when you say We and know who you mean, and each
day you mean one more.
So here are my two stories.
In 1986, I was a law clerk at the U.S. Supreme Court. It was the year of Bowers v. Hardwick and I was clerking for Justice Blackmun. At the oral argument, the swing justice on the court repeatedly asked whether there was any limiting principle to distinguish between two gay men having private, consensual sex in one man’s bedroom and permitting public sex in the back of an automobile or a public toilet. . .as if there was something distinctively gay about sex in cars and bathrooms. He asked whether permitting gay people to engage in sex would require decriminalizing incest. At the private conference discussing the case, he said he had never met a homosexual. Another justice, who delivered the opinion for the court, declared that it would be “at best, facetious” for gay people to claim that their right to lead intimate lives was “implicit in the concept of ordered liberty.” And the Chief Justice of the United States quoted Blackstone’s characterization of sodomy as “an offense of ‘deeper malignity’ than rape” to explain why “there [was] no such thing” as a fundamental right involved in the case.
Justice Blackmun thought differently. Many of you have probably read his dissent; it was one of the formative experiences of my life to have worked on it. But I want to tell a small story that illustrates our theme today. The Georgia statute at issue in Hardwick actually made all oral or anal sex a felony. Early on, I had suggested that the justice emphasize that the court’s opinion, with its almost obsessive focus on homosexual activity, rested on an unexamined assumption that gay people were different in a way that permitted denying them the right to intimate consensual sexual expression that the court had already recognized. The language I suggested went something like this: the court was mistaken to think that gay people’s lives “may be controlled in a way that would not be tolerated if it limited the choices of the rest of us.” But when the draft came back, although the justice had agreed with the point, he had made two subtle, but telling, changes in the language. The published dissent explained that the court was distorting the question presented by proceeding, as Justice Blackmun put it, “on the assumption that homosexuals are so different from other citizens that their lives may be controlled in a way that would not be tolerated if it limited the choices of those other citizens.” At the time, I remember thinking that the language he chose was a little clunky, but with decades of hindsight, I now see that it was very wise. In making those changes, Justice Blackmun was doing two things. First, he was emphasizing that gay people are citizens – that is, true members of our national community. But second, and just as importantly, he was rejecting the idea that there is an “us” for straight people – and that gay people are somehow a “them.” And he was laying the groundwork for an understanding that the central constitutional claim is not just one about liberty; it is about equality as well. Justice Blackmun, whom Harold Koh once playfully described as a “White Anglo-Saxon Protestant Republican Rotarian Harvard Man from the Suburbs” was, in short, an ally and partner in seeking equality for us all.
What changed between 1986 and 1996, when Romer v. Evans was decided and 2003, when Lawrence v. Texas was decided, and 2013, when United States v. Windsor was decided? Not the words of the Constitution. Okay, actually the words did change, because of the ratification in 1992 of the twenty-seventh amendment (which governs the compensation of members of Congress). But not even the most clever textualist can find anything in that amendment, originally proposed in 1789, about equality for LGBT people. (Actually, you could rearrange the letters in amendment’s key words – about “varying the compensation” – into “ten gay companions thrive” but I don’t think that would get us very far). No, what changed is illustrated by this next story.
Seventeen years after Bowers, I was in the courtroom for the argument in Lawrence v. Texas. The counsel arguing for Mr. Lawrence was Paul Smith, a gay man . . .who was a former law clerk to Justice Powell – the justice who had claimed never to have met a homosexual. At the end of the argument – which had gone very well for our side – I was standing in the well of the court with Walter Dellinger, with whom some of you may have worked when he served in the Office of Legal Counsel and the Officer of the Solicitor General. Linda Greenhouse, who was then the New York Times’ Supreme Court reporter, came over. “What did you think was the most interesting part of the argument?” Walter asked. Without missing a beat, Linda replied, “The bar section.” What she meant was this. A huge proportion of the gay, lesbian and bisexual former clerks and of LGBT members of the Supreme Court bar had showed up. And when the Justices came out from behind the velvet curtain, you could actually see them reacting to our presence as their eyes swept across the courtroom. To paraphrase Secretary of Defense Donald Rumsfeld, gay people had moved from being unknown unknowns to being unknown knowns to being known knowns. The justices had always known people who were gay, but now they knew it. And they often knew who we were. We were people they’d worked with. People they cared about. People they respected. People who were more than what we did in a bedroom. Two decades of gay people coming out meant that the justices, like the rest of the American people, now understood that LGBT people were their children, their friends, their colleagues, their employees.
Fast forward another decade, from John Lawrence, whose essential argument was about keeping the government out of his bedroom, to my client Edie Windsor, whose demand was that the federal government affirmatively recognize her marriage. In 27 years, I’d worked my way from behind the pillar where the clerks sat to the bar section and now to counsel table. What made our Edie such a superb face for legal equality for LGBT people at the Supreme Court was not that she was articulate and charismatic and gorgeous – although those things never hurt. Rather, it was that her story, her marriage, was one that all sorts of people – gay and straight, young and old – could understand. Any of us would be blessed to have a spouse like Edie. And since I’ve been here at DOJ, it’s been my privilege to work on post-Windsor implementation issues with a team of gay, lesbian, bisexual, transgender and straight colleagues to seek equality for all.
The successes, so far, of the legal movement for LGBT equality have always rested on finding those partners and allies: after all, we are a numerical minority, and we can succeed only by persuading a majority – on a court, in Congress, or among the people themselves – to support our claims. Dr. King used to quote an elderly black minister: "Lord we ain't what we should be and we ain't what we’re gonna be, but thank God, we ain't what we was!" As we look back on two decades of DOJ Pride progress, and a year to celebrate, we need to remember that there’s much work still to be done. There are still anti-gay hate crimes to be prosecuted. There is still ENDA to be enacted. And the velocity of the change should not blind us to the fact that if other civil rights struggles in America are any lesson, we have decades to go and we may need to fight as hard to preserve the gains we’ve won as to achieve new ones. Sometimes, as I work here at the Civil Rights Division for the equality of LGBT people, but also for the rights of people of color, of Muslims, of First Americans and of immigrants, I actually think we’re pretty lucky. I sometimes wish those groups could benefit from the fellow feeling we’ve managed to inspire. If only people who are unconnected with other civil rights struggles could one day wake up to discover that their children are black, their relatives are undocumented, or their friends are poor, just as they wake to find that those folks often are gay, what a different world this might be.