How Has Perry Affected Other Marriage Rights Litigation Strategies: Reflections on a Silver Anniversary and the Golden Rule


Anniversaries invite both reflection on the past and speculation about the future. We gathered on October 5, 2012, to share thoughts about the possible future stages and effects of Hollingsworth v. Perry. But, this symposium also marks a major reflection moment for me because it is the silver anniversary of my graduation from this law school. More poignantly, when the N.Y.U. Review of Law and Social Change (RLSC) last hosted a symposium about the rights of lesbian, gay, bisexual, and transgender people, in 1986, I was a staff member of this journal. So was the classmate who now, thanks to this movement, is my wife.

Then, as now, our eyes were on the Supreme Court. With all the hope, anxiety, and drama High Court litigation can inspire, we debated whether the Supreme Court could be expected to apply basic constitutional principles in a consistent manner when the rights of gay people are at stake, and what the costs might be if it did not. But then, as that symposium examined, we lived in a country in which half of the states deemed us criminals. The AIDS death toll was horrifying, as was the cruel treatment of many who became ill, or merely were thought to be at risk. At the same time, we were seeing exciting changes.Wisconsin passed the first statewide law prohibiting employment discrimination based on sexual orientation. The City of West Hollywood enacted the first local domestic partnership registry. Second-parent adoption was conceptualized and accepted, at least within the confidential proceedings of the San Francisco Superior Court. And here at NYU, down the street from the Stonewall Inn and around the corner from The Duchess, we had the opportunity to learn from Tom Stoddard, then newly at the helm of Lambda Legal, who had developed one of the first sexual orientation and law courses and for whom a Hays Fellowship is now appropriately named.

We gathered during the period of dramatic lead-up to the Supreme Court arguments in Bowers v. Hardwick, sharing hope and trepidation. Could at least five justices be persuaded to recognize that all of us must be free to make our own choices about love and family, or at least to be physically secure in our homes? Four months later-marking the end of Gay Pride Month and the cheerful optimism of many–Justice White answered for the Court. He emphatically rejected our plea for inclusion in the constitutional contract that defines us as Americans, branding that request, “at best, facetious.” Chief Justice Burger piled on, concurring that to credit Michael Hardwick’s privacy claim would be “to cast aside millennia of moral teaching.” Lest anyone mistake the depth of his scorn for the proffered equating of same-sex and different-sex relationships, the Chief Justice admonished that the penalty for sodomy under Roman law was death, that the English ecclesiastical courts likewise had imposed criminal sanctions, and that Blackstone considered consensual sodomy “an offense of ‘deeper malignity’ than rape.” Wow.

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