Get Used to It: Ep. 101, "Lawrence v. Texas"

(typewriter strokes) (upbeat music) - Hi, welcome to "Get Used to It." It's a show about things of interest to and about the gay, lesbian, bisexual, transgender community. But you're all welcome to watch, 'cause today we have a very interesting show, as we always do. We're gonna talk about Lawrence and Garner versus the State of Texas. Yes, it's the Supreme Court opinion, basically that said gay people do have a right to privacy. And I have some interesting guests to talk about that opinion. What was good about it, what may be bad about it, what it means for the future and how it reflected work we had done in the past. My guests today are Jenny Pizer, who is Senior Staff Attorney at Lambda Legal Defense and Education Fund here in Los Angeles. Welcome, Jenny. - Thank you, great to be here. - Thank you. Torie Osborne, who is the Executive Director of the Liberty Hill Foundation here in Los Angeles. A longtime activist in the community and community organizer. And as you know, here in LA, used to be Executive Director of our center. Welcome, Torie. And last, but never least, Jon Davidson, who is Senior Attorney at Lambda Legal Defense and Education Fund here in Los Angeles, who did some work on this case, as did so many of our legal counsel. And let's start with you, Jenny. Tell us a little bit about this case. What were the facts that gave rights to the case? Why this one, instead of, you know, all the other cases that could have been brought? And tell us, 'cause we probably wouldn't have read the opinion, kind of what the court held. - Well, this was a case that arose out of the police breaking into the private home of two gentlemen, John Lawrence and Tyron Garner, in Houston, Texas, in 1998. But actually to understand why it went all the way to the Supreme Court, it helps to know a little bit back before that case to know that Lambda Legal had been working for many years to develop the law to try to get rid of all of the so-called sodomy laws in the country because of the ways they're used against gay men and lesbians. These are laws that criminalize oral and anal sex, and sometimes they target just gay people. And sometimes they criminalize oral or anal sex, whether the couple is same-sex or different-sex. Lambda had been developing constitutional theories to try to attack these laws, and had decided as a strategic matter that it would be sensible to focus on the laws like the one in Texas that target gay people only rather than the laws as in nine other states that target acts irrespective of the sex or sexual orientation of the partners. - So the Texas law said if you're a same-sex couple and you engage in sodomy as defined in the statute, it's a crime. But if you are a mixed-marriage, as it were, it wasn't a crime. - That's right, that's right. And in fact, Texas used to have a law that targeted acts irrespective of sex and sexual orientation and got rid of that law, as many states did when they updated their criminal code. Then they realized that they had left it possible for same-sex conduct to take place and added a new law that targeted just gay people. And they named it, and lest there'd be any doubt of the purpose of the law, the homosexual conduct law. - So that's was very convenient for us. - Yeah, and that actually turned out to be something that was relevant in the litigation, because the purpose of the law was right there in the name. It was helpful in a sense and convenient. We knew what the state of Texas was trying to accomplish with the law. So Texas and three other states that had laws like that were top of our list to focus on legally. And so when in 1998, the Houston police got a call, a false report as it turned out, of a man with a gun and they busted into the apartment to find the man with a gun. Instead, they saw, they found, well, two men engaged in some, some private sexual activity and they arrested them and they took them down to the station house, booked them, kept them overnight and then proceeded to prosecute them. Now, that doesn't happen very often, thankfully, but because it did in that instance, it created an opportunity that we knew legally could be important, because it shows the purpose of the law, they're not trivial, they do get enforced, and that it was a real live case. It was not anything that was made up. And John Lawrence and Tyron Garner, likewise understood, of course they understood, they'd been held in jail overnight, but they also understood the bigger reason in terms of the gay lesbian community for getting rid of those laws. And they were willing to come forward, although they're very private individuals, but in a sense to allow the movement to have an opportunity to insist that the state of Texas try to explain why it had a law like that. And for Lambda Legal to have a chance to explain all the way through the court system, why those laws can't be justified. - Yeah, it's interesting because people's names get put on cases, and you start hearing about the cases sort of referred to by their names, but you don't really pay much attention to the plaintiffs themselves. And I had read that these gentlemen were, you know, were pretty private and suddenly they were gonna be the plaintiffs for years. Very, must have been rough on them. - Well, I think that's true. Although, I think they were very clear and certainly as their lawyers, Lambda Legal was very clear, that this was a case about privacy and that the government was wrong to have intruded on their privacy. And so details of their relationship and their lives were not important. The point was the state had no business intruding on the privacy, and there was a need for them to come forward as citizens and be in court, but not to say anything more than they were two men having sex and they have a right to do that. So the case proceeded. There was an intermediate court of appeal decision in Texas upholding the law, and then the high court in Texas that would've had the authority to strike it down refused to hear the case. And that's what set up our request to the US Supreme Court to consider the federal constitution and whether such a law can stand in in Texas. The high court said, yes, they would take the case. And we moved forward to, you know, to ask the court to look at some issues, not just that law, but the way laws like that have been used against gay people going back many years as badges of criminality and reasons to discriminate against people. So we made two main arguments in the case. One was, and this was sort of the front and center argument, that it was a violation of equal protection for the state of Texas to criminalize intimate sexual acts if done by gay people or same-sex couples and not different-sex couples. - And there's been a whole line of cases, I think, that people would understand in terms of race and gender using the equal protection clause of the Constitution. And that's been that, I mean, generally there's a line of precedent that you cite and there's a whole line of decisions where we believe that we have equal rights as women or as people of color or even people with disabilities, although there's sort of a lower level of protection in that. So that's the line of cases that this first argument really was kind of coming out of. - That's right, and the contrast there was a law that specifically explicitly targeted gay people, where some of the other statutes do not do that. The state has to have a legitimate reason if it's going to treat one group of people differently from another group of people. Then the other argument was that it was a violation of privacy, which not so difficult to understand in this case given the state coming right into the bedroom. I can't really imagine a place more private than a bedroom with a closed door. But the right of privacy isn't just about being in a private place. As the precedents have developed in constitutional cases, it protects the right of an individual to make decisions. And it's a liberty right to make decisions about how to run your life that the state doesn't have a right to get in there and tell you who to fall in love with, when to start a family, how to start a family, how to raise your children, whether to have children or not. There's a long line of cases protecting that right of personal autonomy as a type of privacy, because the idea is the state shouldn't be in there intruding on that kind of decisions. And that of course is relevant here as well. - And it's related really to, in a way, to reproductive behaviors or anti-reproductive behaviors, really starting with contraception cases, Roe versus Wade, which I think everybody's heard of. And it was interesting 'cause those were the non-reproductive sex kind of situations, contraception, abortion, and then really sort of same-sex sexual activity. So that was the other thread that you made an argument, both of these threads in the same case. - That's right, that's right. And the decision which came down last month, Pride Month, the most wonderful way to recognize our pride, it came down on June 26th, the decision was tremendous because the majority opinion written by Justice Kennedy, and he was the same justice who authored the Colorado Amendment Two decision, recognizes and specifically affirms that both of these arguments have have strong force to them. He said that the equality argument is tenable, which he could have just said it's good, but he said it's tenable. A little fancier way of saying it. But that he understood the role that these laws have had, the harm that have been caused in the lives of gay people and decided using the privacy analysis or the liberty analysis. And specifically said that if he had just written it in terms of equal protection leaving the other laws on the books, it wouldn't have gone far enough because those laws are understood to be about gay people and are used against gay people, even when they're written in terms of sex acts irrespective of sexual orientation. What he, the way he explained the liberty interest shows how far we've come. Because he talked about the precedence, as you were saying, that that are about sexuality and family life, and said that that sex for a gay or lesbian couple plays the same role in a mature adult relationship as sex plays in a heterosexual relationship and in a marital relationship. And that to say that this case is just about the right to engage in sodomy is to demean the claim, is to reduce gay people just to a sex act and that's not right. Well, that of course is what's been said about gay people going back for years and years. So he understood that, and he talked about the value of sex to being a person and the right of individuals to make these choices for themselves. And so as we create families and act as adults in creating families, the Constitution protects us. Now, it's important to recognize that that Justice Kennedy reserved some questions that this decision doesn't decide everything about our families. And specifically, it doesn't decide whether we have the freedom to marry or not, whether states can treat us differently in that respect, or also whether the military don't ask don't tell policy can stand. Those are questions for a future day. - But he did take a larger view than just striking down this law and talking about sodomy. Let me ask you, Jon, how does this differ? I mean, everybody heard about the Hardwick decision. We were very upset about that decision. I don't even remember what year that was. - 17 Years ago, 1986. - 17 Years ago. Give us a little of the history from that point to this point. I'm, of course, gonna talk to Tori about the organizing that had gone on during that time and whether that might have made a difference. But in terms of our legal history, what had been going on? - Well, I think it's important for people to understand that the both legal and activist energies have gone into trying to get rid of these sodomy laws for really more than 40 years. But after the Hardwick decision, I think people, you know, it was definitely a legal setback for us. And the strategy went into in part, besides what Jenny said, kind of focusing on particularly on the states that criminalized only same-sex sexual conduct. There was a dual strategy of going to state constitutions if the federal constitution wasn't gonna protect us and trying to repeal the statutes that still exist. We successfully repealed statutes actually in eight states, and then there were five judicial decisions relying on state supreme, state constitutions, where state courts struck down their sodomy laws under their own constitution in Kentucky, Tennessee, Montana, Arkansas, a case that Lambda had brought, and Georgia itself, which was ironic 'cause that's where the Hardwick decision was from. That the Georgia Supreme Court actually went the other way from the US Supreme Court under their own constitution. That was important because it really embarrassed the Supreme Court. It was like these lower courts, these state courts, were basically disregarding what they had to say and interpreting their own constitutions in a different way. And I think that was an important step in really getting the court to rethink this. But it, you know, it was one of the things that changed. I think public opinion changed in a very significant way really. In the 70's, only 40% or so of the American public thought that there should not be a law to criminalize same-sex sexual conduct. And now we're above 60% believes that there shouldn't be laws like that. And so to some extent, the Supreme Court was just catching up with where the rest of the public had moved. - But leaving Hardwick kind of where it was created some problems for the community, - [Jon] Oh, tremendous - that really was even beyond the sort of sexual conduct. - You know, I think the Hardwick decision was really a weapon of mass destruction against gay people's civil rights. Every case that we walked into court on, it was cited against us to say, look, the Supreme Court has said you don't have any rights. I mean, they over-read what it did, but it was used to basically brand us as criminals. And so when we went in seeking custody of our children, they said, you can't be a good parent, you're a criminal. When we sought jobs as police officers or teachers, they said, you can't have this job, you're a criminal. And they said that even in states where oral and anal sex was illegal for everybody and we weren't the only ones engaging in it. But it was a way that it could be used as a kind of a badge of infamy against gay people. And this decision now wipes that off the books. It really it both says Bowers was wrong when it was decided and wrong now. That's pretty strong language for a Supreme Court opinion. And that actually has a very significant impact because it means that people who had bad effects from the Bowers decision can really go back now because it really is saying it's retroactive, this decision, and they can re-litigate if they lost custody. - So in the opinion itself, they said not only, you know, people understand, oh, it overturned Bowers or Hardwick, whichever you call it. It was the same case. But they said it was wrong when it was decided and it's wrong now. That has a significant impact. - And I mean, it's interesting because they went back and actually said that it was based on a lot of incorrect understandings of who gay people are and about the history of these kinds of laws. And so it was very critical of that analysis, which was an analysis that was profoundly disrespectful of gay people and our lives. And one of the things that's wonderful about this opinion is it speaks in a very respectful way about our relationships and about the way in which family is... That sex plays the role in our lives and in our creation of family as it does for everyone else. And I think the tone of it will really carry forward in the decisions to come. - So if you were to look at the implications of the case, when you say carry forward, what kind of thing would you think? - Well, I wanna say two things about that. One is justice Scalia in his dissent where he's really just frothing at the mouth, is he lays out a kind of a marching orders to the right. And I really think he did this very politically intentionally to feed them lines about how this will throw at risk all laws that regulate sexuality in any way. And he says this, you know, this means we can't have any morals legislation, anything about laws prohibiting prostitution or adultery or incest. And it's really preposterous what he's saying, because what the court says is you need to look at what's the government's interest. Why is the government trying to regulate this conduct? And it says if nobody is harmed by that conduct, and if the only justification for it is some people don't like it, that's not enough to intrude upon the liberty of people to be free from that sort of intermeddling in these sorts of important parts of their lives. But in these other examples that he gave, people are harmed. And so it's just not at all parallel. And it is really kind of just trying stir up people's emotions about, that have to do with things that actually do create harm. But I do think what the decision will do was it will really dismantle a lot of the discrimination that has existed against gay people that has been premised upon this idea that we are criminals or that it's okay to have different rules for us than everybody else. - Of course, Jenny said that the opinion said pretty directly this has no impact necessarily on whether states will allow same-sex marriage, has no impact specifically on relationship to what the states might decide about our ability to have families, keep families, et cetera. - I think that it doesn't say anything directly about that, but it does kind of say there is a constitutional right here that is premised on this notion of family and of developing relationships and that the government has to have legitimate reasons for trying to interfere with that. And so it will be a powerful tool as we continue to struggle for just treatment for our relationships. - Well, it was interesting that Justice O'Connor didn't particularly like the privacy aspect of it as well and would've preferred that the court went on the equality piece. And I think to some extent, as you said, equality is a little less of a protection in a funny way. Privacy really talks about family and relationships, and in a way says these are real relationships, and these are real relationships worth protecting. - I think, you know, this kind of is a really, a very affirming way of talking about things that are substantively important. Equality just says treat us the same as everybody else. If you treat everybody else poorly, you can treat us poorly too. This says nobody gets treated poorly. And that way, this decision was really a victory for everyone's rights. It was a protection for heterosexual people too, to say the government isn't gonna go in your bedroom either. And it's nice that gay people were able to win that for everyone in this country. So I think that that's really good. It's nice that there are both opinions actually, because Justice O'Connor is seen as a moderate and there are a lot of people that will pay attention to what she had to say. And what she said was she didn't wanna overturn the Bowers versus Hardwick case 'cause she had joined in the majority there, which in the decision that was being overturned here. And so she didn't really wanna say she'd made a mistake before, and so instead she says, well, whatever the rules are, they have to be applied equally. That's very important to have even the moderates saying you can't have different rules. And that will, I think, be an opportunity for then questioning, well, why do we have different rules in the military? So it doesn't decide that question, but at least says it's all up for grabs again and is gonna make possible kind of revisiting some things that we thought maybe were really not gonna be able to be challenged for some time. - Well, Torie, it's been almost 20 years, Jon says, since that, the Hardwick decision. And I think you remember and I remember, and it'd be great if you told the story about the gathering that you put together in terms of our celebration or the Bill of Rights, I think it was, when we were talking about Hardwick, or maybe it was just about Hardwick, and the organizing that's gone on since then and how you think it might have impacted the ability of Lambda and the rest of us to get an entirely different decision now, 17 years later. - Well, I think, you know, the Supreme Court might have done the right thing anyway, just given the passage of time and so forth. But I don't think there's any question that the depth of the decision, the language of the decision, the strength of overturning it and admitting, you know, publicly that they'd made a mistake, didn't come out of the sky. I mean, it was really the result of 17 years of very aggressive and intentional and strategic organizing of the social movement that is the gay lesbian movement for equality. And one of the pivotal events, and, you know, we don't, we're a country that doesn't do history very well and even within our movement, and to some extent just 'cause things have been moving so fast and because the ecology of our community has been so destroyed by AIDS and we sort of reinvent these things. And it actually wasn't me that organized. It was my predecessor as Executive Director of the Gay and Lesbian Center, Eric Rofes. In 1986, right after the Hardwick decision, he organized a two day conference in Los Angeles called "It's Our Constitution Too." Now, you have to remember, this is 1986. This is before... I mean the AIDS epidemic, it was sort of like the early height of the AIDS epidemic. It was ravaging the gay men's community. It was the beginning of the community response to AIDS. The infrastructure of our gay civil rights movement and of the AIDS services organizing and activism was just beginning to have some legs. And this two day conference was the first time that I have ever seen in really any of the many social movements that I've been part of, such a kind of strategic focus. It was called "It's Our Constitution Too." Michael Hardwick was there, who, you know, obviously was the star of the Hardwick, Bowers v. Hardwick Supreme Court decision. He later died of AIDS. And what it was was the, you know, Tom Stoddard, who also died of AIDS later, who was head of Lambda at the time. Nan Hunter, one of the key judicial geniuses in our movement. The folks who then later in the wake of Hardwick decision organized the Sodomy Project at the National Gay and Lesbian Task Force. Key leaders in the gay movement, in the GLBT movement, who had never met each other. It was the first time. And I was, I mean, I was kind of like a junior player at the time. I wasn't in a leadership role. I wasn't even at the Center yet, I don't think. You were involved. It was actually the first time that you had publicly sort of come out. The first time that you had been at a gay event, if you recall. - I remember, I was moderator of that panel. - You moderated the panel. So you had some of the best legal minds, political minds, grassroots organizing minds, all in one place for a weekend. And you have to understand, we were like in sort of collective grief and rage, but there was a strong intention to build a movement. I have often thought that it was the moment in our movement that it's very analogous to 1964 when the new right was formed outta the ashes of the Goldwater campaign and decided to reconfigure the right wing in America. The radical right wing from the old right. Get rid of anti-communism and kind of the racism that were the lead issues and to remake the new right. And when they said they had a 20 year plan, and of course they got Reagan. They got Reagan in office in 16 years, but they fashioned a new political movement. And in our own way, what we did, not just at that weekend, but that weekend was a critical weekend in Los Angeles because we strategically talked about the long-term job of changing public opinion and of... We talked about movement building the way the right wing talks about movement building and the way-- - It's the issue, you used the word intention, and I wanna come back to that because the long-term nature of it, but the intentionality of it is the thing that really struck me. - Well, what was amazing about that weekend was that people were, they were angry. There was a speak out. There was kind of like an open mic. And I know you remember. And one after another, you know, sort of, you know, gay men stood up at that mic. And as AIDS was beginning to devastate the community, but these were entitled people. These were people who had power, who had power in the business world, who had power in the entertainment world, sort of like saying, how can they say we're criminals? I run a studio, you know, I'm a successful business guy. I'm not a criminal. It was the first time that you could see the politicizing, the mobilizing of that sense of, you know, it's our constitution too. How could they not see it? How could the Supreme Court be so... But that is a, that is a powerful thing. You know, you take people who have power in the world and suddenly realize that the institutions of society, you know, don't see it that way, and you have some very mighty forces that help to move things forward. But what happened that weekend was, in my view, it really sparked what then became really a tradition in the community. The lawyers all meet together constantly, whether you're at the ACLU or Lambda or the different local and state legal groups. There's a collaborative ethic, I think, more perhaps among the lawyers, but even in a broader sense. The political and grassroots and legal and media arms of the gay and lesbian movement. And I actually think that this is one of the great untold stories of the GLBT movement, is the collaborative nature of it. The fact the executive directors gather together every year and have since a couple years after that conference. That in fact there is an intentional, and that in the most conservative time. I mean, the right wing in this country has more power, more power, more institutional power, more legal power, more political power than it ever has in American history. We've always had a right in America. It's never had as much power certainly as it does today. And I think that the GLBT movement, starting from Hardwick, that decision, and that it came at the same time that AIDS was ravaging the community. So there was already the beginning of an infrastructure, if you will, of leadership, of some vision and of some energy and of an activist impulse. Remember, this is before Act Up, before PFLAG, before much of the activism that came in the next couple of years, but it helped. So what I really think we need to realize is that, that some of the way that we, some of what has happened in the world that actually made this Supreme Court, you know, catch up with the rest of the world, if you will, I mean, this is not so forward-looking a decision as it is a it's about time decision in many, many ways. But that that is because of the extraordinary work at the most conservative time in American history when our community has been devastated by the HIV AIDS, that we, in fact, forged a smart, strategic, multi-layered movement to win hearts and minds in this country through a series of either fighting back the right and doing better at messages, or just massive coming out and organizing, organizing, organizing. So this particular victory really is Lambda's. I mean, the credit goes to the legal arm of the movement, but the context and the political shifts and the changes in public opinion, really the credit goes to hundreds of thousands of people who have come outta the closet, who have talked around the living rooms of America about their lives, who have humanized people that were marginalized, and so that people have, you know, sort of caught up with reality. - Well, not only people have caught up, but what Jon said, the Supreme Court says in its opinion, we were wrong. Not only were we wrong about the decision in Bowers, but it was based on wrong information. Now, how does that information get found to be wrong? It is that we've developed, and it's just the way you're talking about, Torie, in terms of, you know, in terms of coming out. But the intentionality of it is very interesting to me as well. The media, the organizing, the legal theory, that shows the court they were wrong. How do we do it? It's just the truth. Here's the truth of our lives. - You know, we are at a very critical moment right now. It's wonderful and it's exciting and we've been celebrating. And that intentionality, I think, is there right now with respect to people now seeing what we need to do to protect our families and kind of the effort that's going into recognition of relationships. AB-205 in California, the Domestic Partner Rights and Responsibilities Act, but also the struggle for marriage and for equality in marriage and for freedom to marry, where there are this kind of multi-layered attempt there to really move in the same sort of intentional way. But what's interesting is the response to Bowers versus Hardwick and the loss there was people who were angry and upset. And you know, the marriage thing is so much premised much more on love and on people wanting to express that. And the question is, will it motivate us in the same way, because the right right now is scared. They're very scared by this. And Scalia intentionally kind of gave them the rhetoric about that. And again, as he did in the Colorado Amendment Two case, he comes back to this is a culture war we are fighting. And he phrases it in terms of war. And it's very interesting to me, you know, kind of like who's at war here? They're the ones that have been trying to put us in jail, to fire us from our jobs, to take away our children, and to have us beat up and killed, okay? And what we have been struggling for is to be able to live our lives free from that sort of government and interpersonal violence and harm. And yet they are the ones who are saying it's a war. And I guess the message I get from this decision is, Justice Scalia, the message is make love not cultural war. (laughing) You know, that's what we are saying. - Great bumper sticker, Jon. I'm for it. - And you know, so I find it actually, though, quite frightening. And that the right actually, I think, will stop at nothing right now. What we have been starting to see from them is both, we should go amend the Constitution, they're saying. I mean, this is very frightening that the head of the, the Republican head of the Senate, the majority leader has now said, yes, let's go amend the US Constitution to write inequality into the Constitution to take away people's rights. I mean, that is very scary. And at the same time, they're trying to just now attack the courts. I mean, that Pat Robertson would say and write that there are members of the Supreme Court who are old and sick, and let's pray to God to do something about that on the court. I mean, this is, it's like, you know, what sort of moral message is that? - Pat Robertson with a moral message? I don't think I've ever heard them in the same sentence before. And wasn't it a shame that Strom Thurmond seemed to have dropped dead the exact day that the opinion came out. The poor guy, I mean, he went, gays are equal, ah! Oh, I'm sorry, I hit the microphone there. I'm really, I don't mean to be disrespectful to any of our senators, of course, but it just struck me as a real irony. - I think one of the things that's exciting here, and what Jon was saying made me think about this. Is as we look at this history, as we've just been talking about it, it shows how much each person has an ability to make change happen. I mean, as lawyers, we have particular training. And at particular moments there are cases that have the ability to bring it all together and move us forward in the courts in a particular way. But I do think the reason we won, and with an opinion that understands so much about who we are as this opinion did, is because of the acts of people coming out. And I wanted to mention, in addition, there were strategy meetings and there were things here in LA. There was also a march on Washington the year following. And in fact, you know, right behind you, posters from it. I mean, that was tremendous. And one of the things that was said after Hardwick came down, Justice Powell, who had originally was intending to vote to strike down the law and then changed his mind and voted that the law should remain. And then afterwards, he spoke publicly that he realized maybe he'd made a mistake. He regretted that vote. But part of why he made that vote was because he didn't know any gay people, and it just didn't seem to him that the law was causing harm. And as a fairly conservative jurist, he felt that the use of the court's power should be limited. And what happened after the decision, as we've been discussing, is movements and planning and media, but also individuals coming out and changing society by coming out. And so what I hope happens with people feeling celebratory and feeling that it is our Constitution too and now we know that it's our Constitution. I've been thinking about this decision as our Declaration of Independence in many ways. Now we have liberty too. But to continue the process of showing who we are and that we are loving, mature people who create families that are terrific. We care about each other. We build community. We take care of our children and that there's harm to the discrimination in marriage. That we don't all need to do this by filing lawsuits. There's only, you know, that lawsuits are successful when there's the right ingredients in the mix, but the ingredients include all of us showing who we are. - But, you know, that's an interesting double-edged sword in a way. And I wanted to ask you, Torie, as the representative of the sort of non-lawyers in the group, if that makes sense, people think that decisions are made on the law. I mean, maybe they doubt it. Maybe they think it's corrupt, or maybe they don't really believe it, but theoretically it's supposed to be, especially the United States Supreme Court. Now, everybody sort of lost it after the election because people lost a lot of faith. But do you think there's an idea that we do affect the way the court decides by our organizing? And is that a good thing? - Well, I think people don't enough give credit in this country. I think this country's kind of lifting up of individualism and elevating certain institutions, I think the Supreme Court is one of them. I mean, I think the problem is we never give enough credit to how a change actually is made. Change in this country is hard won by essentially broad social movements that struggle sometimes for years, sometimes for decades, sometimes ongoing over, you know, a century or more. And it's a combination of individuals and sort of collective activism of different kinds and different ways that influences, that inspires people to move more into more engagements or involvement or coming out. I mean, it may be supremely individual, but you get inspired because you see somebody else do it and you may, you know... So it's a kind of an interface, but it affects individual lives, but it's actually a huge collective or a cohort of people who make decisions to kind of to change the conditions of their lives and to build institutions and leadership and then strategy to move that forward. And I mean, this is one of the major problems in this country is that people don't recognize that the eight hour day came from the labor movement. That every right that we have didn't come from somebody giving it to us. It came from lots and lots of people working their ass off to actually... And beyond that, there's a kind of an art and a science of social movements, and it's something that I find very interesting. But the thing that I wanted to, wanna say is that, you know, with all due respect to the fact that the right wing is in power in America, in the United States of America right now, that justice Scalia gave marching orders to the right, and I think Jon is right, and that they're all in a frenzy now to try to do put together a constitutional amendment, There is a time when we, and I believe this is a time when a social movement actually wins. When the institution, the validation by the institution of authority actually just validates what is already there, I'm not being very articulate, and I believe that this is such a case. I think these guys sound like, they sound marginal. They sound like whiners. They are overreaching. Their moment is passed. Forget about it. There ain't gonna be no constitutional amendment. And I'm not just talking about that the gay movement is some sort, it's so powerful. I mean, the people of America have moved 20 to 40 points in the polls on everything. On job description, discrimination, and on family issues, on the toughest issues. On should should gay people teach our children, on should gays get married, we've moved 20 to 40 points depending on the poll in a matter of less than two decades. There has never been a social movement in American history that has made that kind of progress in that short of a time span in this kind of in a political environment. - But it is an interactive process, and I think that that's important that people get that the court serves this very important role as kind of the moral voice for our country where it is trying to look at the Constitution, which is this guiding document with the Bill of Rights, which is a way of saying the majority doesn't get to make all the decisions about individual's lives. There's something that was so brilliant about the adoption of that Bill of Rights and saying we're gonna put some limits on majority will here. And that is the court's role, and it's important that people understand that as an legitimate and critical part of our structure of government that has kept this country from really falling totally into the hands of some people with power. And so, you know, that's a thing to be celebrated and is a thing that can be influenced in slow ways to get people to understand what that needs to mean in order to fulfill the promises that we're in the Constitution and the Bill of Rights. But I do think we need to be careful of sometimes not moving too quickly. And I think sometimes particularly, you know, with the internet and MTV and everything, people are impatient with this. And that this case, you know, it did take 17 years, and even that was very quick. It took 75 years to get rid of the Supreme Court decision that said separate but equal was okay, okay? And even after we got Brown versus Board of Education in 1954, it wasn't until 13 years later that the Supreme Court said that the laws banning interracial marriage violated the Constitution. So we got this today. That doesn't mean we're gonna get a legal decision about marriage tomorrow under the US Constitution, but it is a building block. And it is something that does reflect a shift in understanding about who we were, who we are. That this was no longer seen as just an issue about people having sexual intercourse and the government interfering with that. It was about the court recognizing that this is a way, this is sexual intimacy. That is a way in which people forge personal bonds that are critical to their self-definition and to their creation of family. And that's what the government can't interfere with. That understanding is a necessary understanding to really establish why we should be allowed to marry. - So where does this potentially lead? What do you see, the three of you, coming in terms of, I know other cases must be percolating along. I know there's a notion about how the organizing is going or how it might look in the context of what's acceptable. You know, everybody's sort of going, okay, I don't think that it necessarily says that we got the right to marry, but what do you think? What do you see coming? - Well, I mean, I think we keep mentioning marriage and there's a reason for that. Obviously, with Canada now, legalizing marriage for same-sex couples. And that's right here, it's big, it's close. They speak the same language. And it has prompted the right wing to yet again try to use the idea of marriage as a political organizing tool. I mean, let's be clear, an attempt to amend the US Constitution is a huge undertaking. There are some people who think they'll raise a lot of money by doing that and it will be an organizing tool for the right wing. I think what Jon is saying is very important, that we have a right wing in this country that operates in a way that's not true in Canada. And the discussion unfolds in a different way in this country. And so it is important for all of us to continue doing what we do so well, which is being good citizens and building a movement and participating in order to help public opinion change. But it's not that the decision will come from a change in the polls, it's that we have legal principles and you apply the law to the facts, and the question is, will the judges understand the facts? So it's up to each of us to help the facts be known so that it isn't threatening, it isn't a lightning rod, it's just who we are. And we're not at war. We want the freedom to be, and not to interfere with anybody else. And that's a, you know, that's a part of the education that has to happen before. I mean, in our view, as people who really do plan this carefully, it's a long-term struggle. Lambda Legal's not going anywhere. We're here for the long-term, but we wanna get there sort of step by step so it will be solid. Something that's done too quickly can get taken away quickly. Something that's built solidly based on understanding is something that will endure. And that's been the tradition of expanding recognition of individual rights and the identities of groups, has been that gradual process. - So you're both saying, it's interesting to me, you're both saying don't, slow down now, whoa, Nellie. What is, where's it coming from? - Well, it is coming from a fear that if we get too far ahead of where the public is, there will be reactions against that progress. That that's the thing most likely to lead to backlash. And that it takes a little while for this progress to sink in and people to kind of assimilate it and to not be scared. For them to see that the sky isn't gonna fall, particularly when the right is using this rhetoric of, you know, Defense of Marriage Act. Well, it's like, well, who was attacking marriage? We weren't attacking marriage. We were saying some of us wanna participate in it. But they're saying we are under attack, and that's the message they're trying to feed that any progress we make somehow hurts somebody else. It takes a little while for them to kind of look across the border to Canada and see it's still there, you know, it's not like the straight people all became gay. And what we instead have is stronger families. Children actually being more protected than they were before, who are being raised in those families. And so we do think it's gonna have very important impacts. I mean, the week after the decision, we filed a case in Lubbock, Texas, on behalf of a group of students trying to organize a gay-straight alliance at their club. And what we were encountering before and is as the other side would say, oh, well, you're encouraging criminal conduct here in Texas, 'cause we have a sodomy law. And it's like, well, first of all, you say, that's not, this is not a sex club. This is a club for kids to get together and talk about, you know, them getting beaten up and about how they're treated disrespectfully in all sorts of ways and how they can support one another. But after this decision, we can go in and say, you can't interfere with these young people's rights and their rights to form relationships, and you can't subject them to a different set of rules. - But you know, the slow down piece, I'm not sure. I'm gonna ask you what you think of this slow down piece. - I wonder, it's very interesting to me, 'cause I wasn't quite following it. And now I'm thinking that this is yet another way in which this movement is modeling for others a different kind of maturity. Because one of the reasons that the right wing is as powerful as it is today is because those of us who were involved in the movements of the 60's moved so quickly. I mean, if you look at from 1965 to 19, or 1960 to 1975, the radical changes, the incredible movements that radically transformed this country. The civil rights movement, environmentalism, the women's movement, gay and lesbian, I mean, this was amazing. Now, this is all good, except for the fact that everything happened so quickly. 15 years is the wink of an eye in terms of history. And there was a backlash. There was a backlash that has ended up with the right wing being able to organize the people that had not yet, that felt really displaced, you know, as the global economy was shifting, economics. So you had a whole sector of particularly White men who were losing jobs and were able to blame women or people of color for them losing jobs instead of corporations that were going to the third world. And you basically have created the base, the mass base for the right wing out of response to movements that moved so quickly and were not so thoughtful as you guys are being here about how to sort of take responsibility for a strategy that understands that people need some time. People don't like change. We all know this just as human beings. So I'm very struck by that because the women's movement, you know, the threat that many women had to you know, people saying, if you choose to be a wife and a mother, there's something wrong with you. You know, the kind of political correctness that came with all of those identity movements that has turned out to be an unfortunate sort of fundamentalism. - On the other hand, you need the leading edge, don't you? I mean, you know, I see in the in the gay parades, or Pride parades, there are a lot of signs about marriage. About people saying, you know, we want it and we deserve it. It seems to me that someone has to also be the leading edge. I mean, we may be saying, well, we're not ready to sue every state because it says equal in the Constitution and we think that means marriage. Or maybe we are, or maybe we will be as something builds for it. But you'd need that leading edge. - Well, aren't we gonna go (indistinct) decision, or maybe we might in Massachusetts. - We're hoping. - What's happening in Massachusetts? - We expect a decision sometime very soon in Massachusetts in a case that was brought on behalf of seven couples saying that they should be entitled to marry under the Massachusetts Constitution. Again, there was a kind of a very careful decision about which courts might be ready to hear this, and that we didn't want to go directly to the US Supreme Court, and trying to develop arguments and kind of supported by the political work. So there was two years really of work in Massachusetts with the political groups there, with the various gay and lesbian groups and their allies to kind of try to change the understanding. Lambda has a similar case going on in New Jersey now. And it's been accompanied with a series of town halls all across the state where, and then where legislators who have been invited to come and see. And sometimes they then join in because they see how much support there is from their constituents for this idea that some people should not be excluded from all of the rights and responsibilities that come from marriage. But it's been a very intentional kind of movement where it's been very carefully thought out and deliberate, and not say, oh, let's sue everywhere at once and just, you know, a scatter shot approach. It's been, let's try to figure out where we might have the greatest likelihood of success and let's do the hard work of supporting that so that the courts can feel like they can do the right thing without themselves coming under attack. - I mean, I think folks, we learn so much from looking at history, you know, when we can find useful history to help us. And one of the things that comes to mind is that the litigation that resulted in Brown versus Board of Education getting rid of the idea that separate but equal could be equal was litigation about showing the harm because it wasn't really equal. And an important theme that we're trying to maintain here is helping whether it's a court or the public or people just having a conversation about marriage to understand that this isn't just about symbolic rhetoric, although the symbols are very important and powerful and all of us who go to commitment ceremonies know how powerful those rituals are. But when people are harmed because of a legal protection that they don't have, it makes it concrete. And it's a type of education that's really critical, which is the opposite of what Scalia is doing in his dissent, or Senator Frist is doing in trying to whip up people's fear. It's instead to say, nobody needs to be threatened about the idea that a person should be able to visit a sick partner in the hospital, or should have legal responsibility to pay child support. That's what we're talking about. That's what, you know, marriage means a lot of concrete things and you wouldn't wanna cause this harm would you? Well, no, of course not. That's a family, you know, and that's harm to a child. And so we need a lot more of that. And as Jon said, if we have thousands of lawsuits going on all over the place about the idea, I think it'll make it harder for courts and the public to understand what it is legally and what it is socially, because we don't have enough of the concrete detail. - Well, there seemed to be a lot of celebration, not only in the community. I'm not sure that, you know, straight people totally understood, I mean, if they read the headlines. And our allies, as we call them, which is just anybody who thinks we actually are okay people, in reading the headlines, I know people congratulated me just because, you know, my community had had a win of some kind. I'm not sure they exactly knew exactly what it was, but it just sounded like it had been a win. And it was almost like, well, this was a recognition by some really conservative people, which is the way most people think of the Supreme Court, that you know, that you're okay, so congratulations. And did you experience the same thing? I mean, I think not only as lawyers, I mean... - Well, I also was struck by how much people, it was the minute it happened, people started talking about marriage. I mean, we're talking about it for obvious reasons. But I was struck by, Lydia, my partner and I went to a wedding the next weekend. A straight wedding of a colleague of hers. And all of them said, you know, well, are you thinking of going to Canada? You know, what do you think about, is marriage next? People immediately kind of linked in to the gay agenda as they saw it, or perhaps, you know, as it may be. And it was really sweet. Not one, but four or five people at this wedding said, 'cause these are guys, these are folks that she went to residency, surgery residency with. And they seem to have a wedding a year since they've all graduated and have time to find partners and settle down. And they, not one, but like four or five people said, well, maybe the next wedding will be yours, to the two of us. And it was, I mean, you know, between Canada, between the Supreme Court decision, and between just the natural kind of organic collective coming out of this issue onto the front and center and the social agenda of this country, it's like, it's just, you know, it's pretty extraordinary in your daily life. - You know, I'm gonna let the show end there, 'cause not only are we at the end of the time, but it's a very positive wrap up, I think, of what's happened with us. And I thank you, Jenny. I thank you, Torie. I thank you, Jon. Thank you for being with us. Looks like the United States Supreme Court said that gay people are a part of the natural fabric of American life. So America, get used to it. (upbeat music)