By Summer 2013 the Supreme Court will render two decisions that may affect profoundly gay people's equality, freedom to choose, and right to participate fully in many of the joys, rights and responsibilities of personhood. The Court may decide whether the Defense of Marriage Act (DOMA) violates the U.S. Constitution in prohibiting federal government recognition of same-sex marriages that are sanctioned by states. It may also decide whether California's Proposition 8 violates the Constitution because it discriminates against lesbians and gays by prohibiting same-sex marriage.
This year, the U.S. Court of Appeals for the Ninth Circuit may decide whether a California law that prohibits providing sexual reorientation therapy to minors violates some minors and therapists' federal constitutional rights. Those cases will be argued on April 17th, almost surely to a packed courtroom, just as the Proposition 8 and DOMA cases were argued in March to packed courtroom.
My colleagues and I have filed friend of the court briefs in all of these cases on behalf of several gay men who undertook sexual reorientation therapy as minors and the sister of a gay man who was inflicted with such therapy and later committed suicide. Our briefs tell their powerful and compelling stories. These briefs are all available on our law firm website www.rbgg.com.
Preparing these briefs and reading the transcripts of the oral arguments in the Proposition 8 and DOMA cases caused me to dwell on America's evolution concerning the rights of lesbian, gay, bisexual and transgender people. ("LGBT people") In this essay, I weave a sometimes personal history that reveals the commonality of all group discrimination and the movements and forces that have worked during my lifetime to end such invidious discrimination, and to assure full "liberty and justice for all."
I have lived my entire life under the ancient Chinese curse: "May you live in interesting times." It is also a blessing. Our interesting times have seen the end of Apartheid in South Africa and movements in the United States reducing discrimination and exclusion based on race, religion, national origin, gender, age, disability and sexual orientation.
I was born in Brooklyn, New York in late 1937, and lived there until 1948 or 1949. As a child, I developed an innate aversion to bigotry and discrimination. My parents were progressive as was the only grandmother I really knew. But as we all are creatures of our times, there were ambiguities that were part of my family and daily life.
Even though I cringed when I heard despicable racist and religious epithets and chants, I must have traded in some. I certainly did not understand all the ins-and-outs of bigotry and discrimination. Such understanding involves the maturation process and personal growth over time.
My Brooklyn neighborhood was all white and seemed almost entirely populated by Jews, with a small sprinkling of Christians. A young African American family moved in. The family consisted of a married couple and their infant. The husband had been hired as a superintendent in one of the apartment houses. A rumor swept the grade school children that they were a family of cannibals. A bunch of us went to look at them. I saw only than an attractive young family -- a man, a woman and their baby. I was quietly distressed at the rumors. It took years before I could speak out.
My life has been forested with many such experiences; often they solidified ideas or values that were already forming; sometimes they caused epiphanies or abrupt leaps of enlightenment.
When I was 13, my sister took me to my first Broadway show, South Pacific, which had a major impact on my thinking about race and bigotry. Many of the tunes stay in my head; the one that had the greatest impact and plays most often for me was sung by Lieutenant Cable about himself and Nelly Forbush, the "little girl from Little Rock," who struggled and overcame her racist upbringing. The song's insights are universal:
You've got to be taught
To hate and fear,
You've got to be taught
From year to year,
It's got to be drummed
In your dear little ear
You've got to be carefully taught.
You've got to be taught to be afraid
Of people whose eyes are oddly made,
And people whose skin is a diff'rent shade,
You've got to be carefully taught.
In law school I gravitated into the Civil Rights movement. My first job after law school was in Baltimore, Maryland as a law clerk to Simon E. Sobeloff, Chief Judge of the U.S. Court of Appeals for the Fourth Circuit, which was implementing the Supreme Court's desegregation decisions in the Border and Southern States. I remained in Baltimore as a law professor at the University of Maryland until 1969. I began representing African Americans in discrimination cases, and writing articles on these and related subjects. It took time before the rights of LGBT people grew large on my radar, just as it took until 1969 before the gay rights movement was kick-started at Stonewall. For years, I was pre-occupied with race, ethnic and gender discrimination. Broadening my horizons sometimes was facilitated by memorable events or experiences. One such leap forward happened while I was still in Baltimore.
In the late 1960s I taught a seminar at the University of Maryland on modern civil rights law. One of my students, who was an articulate and well educated racist, said something to justify denying black people their right to vote. It provoked my response that: "I get what is at the base of your position. You do not think blacks are people." I could see he was shaken to his core. This brief conversation instantly changed my student's world view; it was one of the few times I succeeded so well as a teacher. As the words came out of my mouth, I also was propelled along the path to enlightenment as to the meaning of, and the barriers to getting to, "liberty and justice for all."
Just as my student had not understood that African Americans are "people," most opponents of full rights for LGBT people discount their value as people. At the very least they consider LGBT people to be "alien" or "other," as U.S. Solicitor General Donald B. Verrilli made clear in his oral argument in the DOMA case. Like my student, these opponents may not realize that they think LGBT people are alien, other or not even people, but members of some flawed subspecies.
Many people are come to enlightenment driven by personal experience and realization that their LGBT relatives and friends are people just like them in almost every way except for sexual orientation or gender identity. For some it still takes an epiphany, like the one the Republican Senator from Ohio, Rob Portman had when one of his beloved sons told him that he was gay. For others enlightenment comes through evolving understanding, such as recent changes in position by President Obama, the Clintons, Missouri Democrat Senator Claire McCaskill, Alaska Republican Senator Lisa Murkowski and countless other public figures. Regardless what is causing people to embrace same-sex marriage, recent acceptance by prominent national figures are welcome contributions to the tidal wave of change in America and the developed world that is sweeping away official anti-gay phobia and bigotry.
Each of my advances in thinking about the universality of movements for equality, flash back to my roots as a Jew whose grandparents fled anti-Semitic tyranny in Europe, whose late wife's family fled the Holocaust, and whose parents dealt with rampant overt anti-Semitism growing up in the United States. I have had relatively few direct confrontations with anti-Semitism, but a full share of more subtle ones.
Like many Jews, I have contemplated whether Shakespeare's The Merchant of Venice revealed that he was an anti-Semite. I doubt it. Like all of us, he was a product of his times, but unlike most he transcended his times. The late 13th century edict expelling the Jews from England was not formally rescinded until the middle of the 17th century, some decades after Shakespeare died. Possibly, The Merchant of Venice helped force revocation of that hateful edict.
Even if Shakespeare were an anti-Semite, The Merchant of Venice has too many important universal lessons for all of us about group hatred and exclusion to dismiss it as an anti-Semitic screed. The principal lesson commonly extracted from the play is Shylock the Jew's anguished insistence that he was just like any other person subject to all the pleasures and pains and feelings we all experience:
He hath disgraced me, and hindered me half a million, laughed at my losses, mocked at my gains, scorned my nation, thwarted my bargains, cooled my friends, heated mine enemies; and what's his reason? I am a Jew. Hath not a Jew eyes? Hath not a Jew hands, organs, dimensions, senses, affections, passions? Fed with the same food, hurt with the same weapons, subject to the same means, warmed and cooled by the same winter and summer, as a Christian is? If you prick us, do we not bleed?
My commitment to the rights of LGBT people probably started in 1971, when I was the national ACLU's Assistant Legal Director. I participated in decisions that took the first same-sex marriage case to the Supreme Court. The exercise was eye-opening for me. Unfortunately we lost and the opponents of same-sex marriage are using the Supreme Court's cryptic refusal to review that first case as a basis for their arguments that Proposition 8 is not unconstitutional.
The more I have interacted with LGBT friends, clients and colleagues, the more I have understood the commonality of humanity, regardless of sexual orientation. Some specific experiences often come to mind.
One of my late wife's best friends from work was an early fatality in the AIDS epidemic. He was a gay man who was "out" in our community but not so much to his family back East. His friends convened a memorial for him. A man no one recognized accepted the invitation to come forward and speak.
He moved hesitantly, and grabbed the lectern tightly. What he said blew me away and reminds us of the universality of all peoples entitlement to "liberty and justice," and what those words really mean in this context.
"I did not know [the man who died]. I do not even live in the San Francisco Bay Area; I happen to be here on business and happened to have read in the newspaper about this memorial."
The speaker hesitated, choked up, and then continued:
"[The man who died] was my roommate at college."
"Until today, I did not know he was gay."
"What I learned today is how important it is to let people be who they are."
One of my closest friends from university is gay. For decades, like the speaker at the memorial, I did not know and only found out by chance. It did not matter to me that he is gay, but learning that central fact about him years into our friendship propelled me down the right path. Recently my friend wrote that the happiest day of his life since university was the day he and his partner of many years went to City Hall in his city and got married. That happiness is his due as a human being!
Other friends have lesbian, gay or transgender children who I know. Watching my friends' unabated love of their children, and adjustment to and acceptance of who they really are has been wonderful, and has helped move me along the right path.
Interacting with my clients in the pending gay rights case -- reading and presenting their powerful stories of pain, survival and loss -- has been wrenching. That experience forces me to ask: How dare we inflict such pain on people? How dare we who are heterosexual presume to control and limit LGBT people's lives? How dare we suffer the conceit that being gay is mutable and can or should be changed by therapy?
The man who spoke at my friend's memorial some 30 years ago got it exactly right. Continued evolution to a just society and culture requires that we embrace and celebrate all manner of differences, including differences of sexual orientation, and each individual's right to be who he or she is.
In the Proposition 8 arguments in the U.S. Supreme Court, the supporters of Proposition 8 argued that they abhor discrimination against gay people, but that somehow it is o.k. to discriminate against them by excluding them from state sanctioned marriage. I have been a lawyer for more than 50 years, and have been studying and teaching constitutional law even longer. Yet I do not get the distinction between other forms of discrimination against gays and lesbians and prohibiting them state sanctioned marriage.
Justice Antonin Scalia rightly observed at oral argument that the fact that nine states now permit same-sex marriage is a "a sea change" in America since 1996 when an overwhelming vote of both houses of Congress enacted DOMA and President Clinton signed the law. Yet some speculate that the conservative members of the Supreme Court voted to review the Proposition 8 case in order to decide that it does not violate the Constitution for states to prohibit same-sex marriage; and there were some hints during the oral arguments that they hope to trade a win for gay rights in the DOMA case against a loss in the Proposition 8 case.
We can more forward even faster "with a little help from" -- and certainly if there is no hindrance by -- the courts in the pending gay rights cases. If it is true that the members of the Supreme Court take note of election returns and read newspapers, the more moderate members and even some of the more conservative members of the Court should understand that any decision that blocks or impedes our march forward could have adverse consequences for our society and for the Court's institutional credibility, just as the Dred Scott decision did.
In what I recall was a lament and rebuke about the McCarthy period, Jimmy Durante said: "Why can't everybody leave everybody else the hell alone." Let's do just that and get on with the hard work of letting all people and each person be who they are. I hope that the Supreme Court gets the message, just as so many public figures have.