Gay Rights a Personal Issue for High Court Advocate

Paul Smith brought energy, agility, and a full command of the case to the podium when he argued on behalf of the Lambda Legal Defense and Education Fund at the U.S. Supreme Court last Wednesday in the landmark gay rights case Lawrence v. Texas, No. 02-102.

He also brought personal experience. Smith, managing partner in Jenner & Block's Washington, D.C., office, is gay, a fact that was not widely talked about, but that Smith and the firm talk about readily.

"I think it gave me a greater comfort level answering questions about homosexuality," says Smith, 48, a veteran of eight Supreme Court arguments before last week. "And I think there is a symbolic importance to the community that I was up there. I don't think the view was that it would have a huge impact on the Court, but it was important in other ways."

In fact, having a gay lawyer argue the case was virtually a prerequisite for Lambda, says Smith. Ruth Harlow, Lambda's executive director, says Smith's experience was the main reason he was picked last year. But, she adds, "it was very important to us" to have a gay lawyer argue the case, in which John Lawrence and Tyron Garner are challenging Texas' "homosexual conduct" law.

The symbolism was palpable in the courtroom. Dozens of prominent gay lawyers filled the lawyers section of the gallery. "The most remarkable thing about the argument was the audience," said Walter Dellinger of O'Melveny & Myers, who wrote an amicus curiae brief for several gay and civil rights groups. The presence of so many prominent lawyers who are homosexual was a "cultural milestone," Dellinger said at a post-argument symposium at Georgetown University Law Center sponsored by the American Constitution Society.

Smith's advocacy also marked a milestone for Jenner & Block, which has become well-known as a firm that welcomes gay and lesbian lawyers. It publishes "Equal Time," a newsletter that features diversity issues; one issue profiled all the firm's openly gay and lesbian lawyers.

"It is very easy and open about these issues and has a real commitment to diversity," says Smith. He joined the firm 10 years ago "when I was not very 'out' in general, but it has been a very supportive place."

Smith also says he has not experienced the kind of discrimination that the clients and other homosexuals face in many parts of the country. "Fortunately, I live in D.C., where there is no law" like the anti-sodomy law at issue in Lawrence. "But when you go to Virginia, you realize it." Virginia law bars sodomy between both same-sex and heterosexual partners. More broadly, Smith says, "I do have a sense of solidarity with the cause."

Smith's sexual orientation is notable for another reason: He clerked for the late Justice Lewis Powell in 1981. Five years later, historians have noted that as Powell deliberated in Bowers v. Hardwick, he mused to a law clerk that "I don't believe I've ever met a homosexual." Powell was apparently unaware not only that the clerk he was speaking to was gay, but that several of his previous clerks were also gay.

Smith says his clerkship at the Court came "during the straight phase of my life." But Smith holds no animosity toward Powell, who was the deciding vote in favor of upholding Georgia's anti-sodomy law. Smith notes that after Powell left the Court in 1987, he said he regretted his vote in Bowers.

"Obviously it was very troubling to him, and he came to believe he had made a mistake," says Smith. "Justice Powell was very much on my mind as I argued."

When Supreme Court justices announce their opinions from the bench, it is usually a dry formality.

Justice Clarence Thomas departed from that tradition last week and won laughs from the audience -- but he also got icy stares from some of his colleagues.

The episode occurred March 25, when Thomas announced his opinion for a 6-3 majority in Woodford v. Garceau, No. 01-1862, the latest of several decisions interpreting procedural provisions of the Antiterrorism and Effective Death Penalty Act of 1996. Woodford dealt with whether AEDPA governs the handling of a death penalty appeal that began before AEDPA's effective date but did not turn into a habeas corpus petition until after that date.

Not an easy ruling to explain, in short, and after Thomas laid it all out, he paused and said sarcastically, "I'm sure you get all that."

So far, Thomas' aside was not that unusual. But he continued, telling the audience with a smile that a fellow justice had told him that the case was about "how AEDPA violates ERISA." Since the case clearly had nothing to do with the Employee Retirement Income Security Act, it was evident that this example of Supreme Court humor meant to lump one piece of complex legislation with another.

The laughter began to roll through the audience as Thomas continued, "I won't say which of my colleagues" made that joke about the case. But, Thomas added slyly as a punchline, "he sits on my left." Justice Stephen Breyer, the only justice to Thomas' left, smiled and looked sheepish as spectators laughed even harder. And some justices, notably David Souter and Ruth Bader Ginsburg -- who dissented in the case along with Breyer -- seemed to genuinely enjoy Thomas' joke.

But no smile creased Chief Justice William Rehnquist's face, nor that of Sandra Day O'Connor, or most of the other justices for that matter.

Why the sourpusses? The best guess is that they would prefer colleagues not talk about decisions in a lighthearted way. And they especially don't enjoy hearing one justice tell the public what another justice says about the case, unless it is in the opinion itself. Or maybe the case was harder fought among the justices than it seemed from the text of the ruling.

Irony and juxtaposition are red meat for journalists, and Justice Antonin Scalia provided it in huge helpings March 19 when he refused to let cameras record his acceptance of "The Citadel of Free Speech Award" given by the City Club of Cleveland.

"How free is speech if there are limits to its distribution?" asked Terry Murphy of C-SPAN, who courageously challenged the City Club's obsequious acceptance of Scalia's standard Faustian bargain: If you want me to come, cameras have to go.

"I might wish it were otherwise, but that was one of the criteria that he had for acceptance," says James Foster, the club's executive director, joining a long line of intimidated Scalia hosts.

Scalia, of course, is not the only justice to impose this condition. William O. Douglas apparently did the same thing, to preserve the commercial value of his speeches. That cannot be Scalia's main motive, since honoraria are no longer allowed for justices' speeches, though reimbursement for trips and lodging is allowed. Those who know Scalia say the principled reason for his policy is that he does not think justices should be familiar figures on the nightly news; his real, more practical reason, friends say, is that he is loath to write new speeches every time he hits the speaking circuit. His self-imposed broadcast blackout preserves the freshness of his texts.

Ten years ago, the late Justice Harry Blackmun requested that cameras be banned from a commencement speech he was giving at UC-Davis School of Law. The law school, asserting that the commencement was a public event, admirably refused to agree, and Blackmun withdrew. If there are other examples of hosts with backbone on this subject, it would be great to know about them, but Davis may stand alone.

The widely reported Scalia contretemps relates to, but may have obscured, a bigger irony that has become evident in recent weeks.

The war in Iraq is being fought in front of cameras around the clock, with journalists reporting detailed information about front line developments.

And yet cameras are still not allowed inside the Supreme Court to record and report the most public and newsworthy events imaginable -- the argument in Lawrence v. Texas, the gay rights case, last Wednesday, or the upcoming University of Michigan affirmative action arguments on Tuesday.

If battlefield commanders in a life-or-death struggle can tolerate and even welcome cameras, what possible argument can the nation's highest court still make for keeping them out?

When the American Center for Law and Justice was founded by religious broadcaster Pat Robertson in 1990, it was no accident that its acronym, ACLJ, was just one letter different from that of its liberal rival, the American Civil Liberties Union.

It was also no accident that when the ACLJ decided in 2002 to consolidate its D.C. operations, it purchased a townhouse diagonally across Maryland Avenue from offices occupied by the ACLU in the Mott House -- and also across the street from the Supreme Court, where both the ACLU and the ACLJ litigate frequently.

The ACLJ paid dearly for the prime location at 201 Maryland Ave., N.E. -- an extraordinary $5 million, according to real estate records -- and is putting more than $1 million more into renovation, currently under way. The ACLJ plans to open its doors in time for the opening of the Court's fall term in October.

There's a crimp in ACLJ's strategy to get in the line of sight of its ideological foe: Last year, the ACLU moved out of the Mott House, consolidating its own operations at another location in downtown D.C. "We're sorry to disappoint ACLJ, but we moved," says ACLU spokeswoman Emily Whitfield.

The location behind the Supreme Court is still prime, says ACLJ chief counsel Jay Sekulow, who adds that the proximity of the ACLU was a key factor in purchasing the property. He was unaware that the ACLU had moved.

"We could have gotten a lot more building three blocks over," he says. "But we are moving there for the same reason the ACLU wanted its offices there -- presence." He adds, "Legal groups on our side don't have much presence in Washington, and we wanted to change that." Sekulow says the purchase was made possible by a donor whom he would not name -- though he did say it was not Robertson.

The 6,000-square-foot building dates back to 1880, says Sekulow, and was a pharmacy until the 1960s. The ACLJ purchased the building from a consulting firm. The office, when it opens, will bring under one roof six lawyers and other staff from three different D.C. offices. It will include a radio studio to enable Sekulow to broadcast his daily weekday radio show from D.C. when he is in town. The ACLJ's administrative headquarters will remain at Regent University -- where Robertson is president and chancellor -- in Virginia Beach, says Sekulow.

Barry Lynn, executive director of Americans United for Separation of Church and State, was not surprised to hear of the ACLJ's move. "Pat Robertson's whole strategy is to achieve proximity to power in all three branches. If Jay Sekulow couldn't rent the basement of the Supreme Court, then he had to go across the street."

SB 101 is scheduled to be voted on Thursday, April 3

CALL YOUR STATE SENATOR TELLING THEM TO VOTE "NO" on SB 101

Senate Bill 101 will grant protected class status by adding "sexual orientation" including "gender-related self-identity" to the non-discrimination categories of the Illinois Human Rights Act. SB 101 will grant protected class status to people who are sexually attracted to a person of the same sex or who perceive themselves as having a gender identity as other than what they were born with. Some sections of this Act impose up to a $10,000 fine for a first offense and up to $25,000 for a second offense and even jail time.

All persons are entitled to the same protections under the law. Extending protected class status to any group based solely on behavior sets a truly dangerous precedent. SB 101 definition: ""Sexual orientation" means having or being perceived as having an emotional, physical, or sexual attraction to another person without regard to the sex of that person or having or being perceived as having an orientation for such attraction, or having or being perceived as having a gender-related self-identity, appearance, expression, or behavior, whether or not traditionally associated with the person's designated sex at birth."

There are more than 27 sexual orientations and disorders according to the American Psychiatric Association, some illegal and at least 31 self-imposed gender-identities. The only exemption in SB 101 is pedophilia -- sex by adults with young children. SB 101 will ultimately give legal protection to individuals who engage in sex with animals and corpses or are gender confused and dress in drag. Partial list of 27 definitions of sexual orientation and gender identities are at http://illinois.cwfa.org

SB 101 would violate basic First Amendment Rights of free exercise of religious beliefs and free speech. All major religions condemn homosexuality, etc., as sin. There is no exemption in SB 101 for religiously held beliefs. Under SB 101 a Lutheran pastor would be breaking the law if he refused to hire a Lutheran homosexual or cross dresser as youth pastor.

SB 101 is unconstitutional. It ignores a recent U.S. Supreme Court ruling that allowed the Boy Scouts to refuse allowing homosexuals as leaders, giving the organization the right to associate and choose men who shared their moral values. (Boy Scouts of America et al v. Dale (2000))

Homosexuals meet none of the criteria for protected class status used by the U.S. Supreme Court.

Standard # 1: As an entire class, they must have suffered a history of discrimination evidenced by lack of ability to obtain economic income, adequate education, or cultural opportunity. According to the Simmons Market Research Bureau, 21 percent of homosexuals have annual household incomes exceeding $100,000 and are twice as likely to have household incomes over $250,000. Additionally, 61 percent of homosexuals have a four-year college degree, compared with the U.S. mean of 18 percent.

Standard # 2: As an entire class, they exhibit obvious, immutable, or distinguishing characteristics, such as race, color, gender or national origin, that define them as a distinct group. "Ex-gay" individuals across the nation are living evidence of the changeable nature of "sexual orientation."

Standard # 3: As an entire class, they clearly demonstrate political powerlessness. Homosexual lobby groups such as the Human Rights Campaign are among the most powerful and well-funded political action committees nationwide. SB 101 could usher in same-sex civil unions. Vermont's Supreme Court ruling (Baker v. State) that allowed homosexual civil unions was based on several factors. The Vermont Constitution has a Common Benefits Clause. Illinois has an Equal Protection Clause. Vermont law allows for homosexuals to adopt. Illinois already does also. Vermont included "sexual orientation" to its hate crimes law. Illinois already does as well. Vermont added "sexual orientation" to its Civil Rights Act. SB 101 will do exactly the same.

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