HLS in the World | LGBT Law

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WILLIAM B. RUBENSTEIN, PROFESSOR OF LAW: I'm Bill Rubenstein, class of 1986, best class in law school history, Paul Butler will tell you, and I am the master of this ceremony. This is a session on LGBT issues in Harvard Law School. If you're in the wrong place, this would be the right time to extricate yourself. I hope that's not true. It's wonderful to see a full room. We have an amazing panel. Everyone on this panel has two things in common with one another. First, they're all graduates of the Harvard Law School. Second, they all did something important in helping LGBT issues come along and progress. And it's just an incredible experience for me to have the opportunity to host this panel. I want to begin by saying two things about those two characteristics. First, these, of course, are not everyone who graduated from the Harvard Law School who helped work on LGBT issues over the years. There are many, many other people who have been involved in this, many of whom are in the room today, and you'll hear more about and more from as we keep going. So I just want to make sure everyone acknowledges this is a subset-- a great subset, but just a subset of everyone who's contributed to these issues from the law school. It's also true, second, that the Harvard Law School is not the only law school in history to contribute to this set of issues, so the panel is partial in that way as well. Although as we take this moment of our bicentennial to celebrate Harvard Law School, I'd like to claim, perhaps without an enormous amount of research, that we've had an inordinate impact on these issues and the people in front of the room have really been among the great leaders in this movement over the years. It's just really kind of been a special connection between Harvard Law School and LGBT issues. It's quite amazing to think that this is the 200th anniversary. If we had gone back to the 150th anniversary 50 years ago, the idea of this panel would have been completely laughable. There would never have been a suggestion that you have a panel like this. And yet, at the same time, 50 years later, you almost have the sense that we've won and that thing has progressed so far, that it's an amazing trajectory. So I would kind of want to hear about all that, both endpoints and everything that's happened in between. My main role is going to be to get out of the way and let everyone else talk. You don't have written biographies of everybody in the panel and I'm not going to read their full biographies. I'm going to instead introduce people and make a few comments personally about them and then let them [LAUGHTER]. Yeah, be careful. And then let them talk about their own work a little bit. What I'd like to do is, I've asked everyone on the panel to start by addressing this question. What was it like when you were at Harvard Law School? In particular, what was it like around LGBT issues when you were at Harvard Law School? I started at Harvard Law School in 1983 and I had a first year section of 150 people. There were two of us who were openly gay. There was very little in the way of role models or experience or anything to look up to but among in that desert, one thing that stuck out was Professor Tribe. During my law school years, Professor Tribe, quite amazingly, looking back on it with Kathleen Sullivan, a lawyer who was working with him at the time, took on two of the largest lesbian and gay rights cases in the country and argued them in the United States Supreme Court. As a young law student, it kind of meant everything to me. So Larry, I want to start with you and ask you actually to go back to your time in law school and tell us if these issues were ever even in the air and what it was like to be at the law school in the 60s. LAURENCE H. TRIBE, PROFESSOR OF LAW: Well thanks, Bill. If I try to think back when I was here, '63 to '66, one thing that does stick out is that Archibald Cox came into class one day and he had a copy of Griswold v. Connecticut, which had just been handed down, and I was fascinated by it. And I raised the question whether it might not be an implication of Griswold that sexuality would be protected and that people couldn't be prosecuted for whom they love. And everybody looked at me as if I was crazy. I mean, I didn't, I have to say, know anybody that was out at that time. Being a straight man, I didn't know much about gay issues. But it seemed to me that it was obvious if there is a sphere of privacy tinged with equality, really the most important and obvious place where it would flourish would be in connection with sexuality, sexual orientation. But there was nothing going on with the law school then that would have reinforced that impulse, and I kind of suppressed it for a while. When I ended up writing my prius on constitutional law in 1978, I had a section on sexual orientation as protected. Sexual minorities, gays, lesbians, I don't know if I talked about bi issues or trends, and the word queer hadn't entered the vocabulary yet in that form, but I had a whole section on why that was a suspect classification. And again, a lot of people told me, don't include that in your book. Nobody will take it seriously, and it was a while before anybody did. Then flash forward, the first gay rights case I did in the Supreme Court was actually before the infamous Bowers v. Hardwick case. It was a case involving teachers, gay teachers and sympathetic straight teachers, in the Oklahoma schools who were fired, either for being gay or for talking about sexuality in a way that legitimated same-sex interactions. And the case had come out in favor of the teachers under the First Amendment in the Tenth Circuit. When the Supreme Court heard it and I agreed to argue for the teachers, Justice Powell recused himself and it ended up being 4 to 4. We sort of won, but the oral argument is one I'll never forget in which Warren Burger and Byron White looked at me as though I were from Mars. At one point, I swear that the Chief Justice actually said, how can you protect the right of people to stand there and say, go have sodomy? And I said, well, that wasn't exactly it, but people are protected for saying go overthrow the government, so why not go have sodomy? Of course at that time, sodomy was a crime, oral and anal sex in every state. I think every state. He said, but this is much worse than overthrowing the government. So flash forward, I sort of knew that the court was not sympathetic to these issues when I argued on behalf of-- WILLIAM B. RUBENSTEIN, PROFESSOR OF LAW: Let me interject before you-- No. We're going to get through everything, believe me, but you've got us up to the early 1980s and before you get to Harvard, let me just pull in some others. I'm going chronologically here. And our next chronological person, our next chronological person skips the 1970s. I want to acknowledge, before we get to Evan, that in the 1970s was the first time the Harvard Law School has a formation of a lesbian and gay student group. So there was the beginning of activism here and the formation of a group. And when I started law school, one of the first things I did in 1983 was go looking for materials on lesbians and gay men in the library. First day of law school they teach you how to do research. The second day, I went in and said, OK, where's the gay stuff? And the third day, I was done reading it all. Didn't know what the next three years were going to bring. One of the people in the 1970s who graduated, Arthur Leonard, is sitting over here. One of the things I found in the library in 1983 was a publication Arthur was writing called Lesbian and Gay Law Notes. When did you start doing? ARTHUR LEONARD: 1980. WILLIAM B. RUBENSTEIN, PROFESSOR OF LAW: 1980. And this is all before the internet, so Lesbian and Gay Law Notes in those days had the feel of being mimeographed. It kind of was, yes? ARTHUR LEONARD: It was actually photocopied. WILLIAM B. RUBENSTEIN, PROFESSOR OF LAW: Photocopied. Even better. Yeah. Yeah. Yeah. And there it was, in the law school library. Evan started law school in 1980. Because you graduated in 1983. I've known Evan or have known of Evan since I was born. He and I grew up in the same neighborhood. We went to the same grade school. The same middle school. The same high school. The same college and the same law school. Evan was kind of a revered figure ahead of me at each of those steps by a few years and hence someone I looked up to. Famously, when I came out to my parents in 1980 something, '82, '82, this wasn't the happiest moment of their lives but one of the first things they said is, well, the Wolfsons have one of those gay kids, too. This was along the lines of we're not the only people to raise a sick person. EVAN WOLFSON: So, first of all, I really want to say, and you can tell from Bill's remarks that we all had dinner together last night. And I think one of the strengths of our movement is that there has been this happy band of warriors who have laughed together, fought together, or fought against each other together, struggled, gone through so much, but had trust and affection and known each other for so many years working together, that it has been at the center of a movement's success. Of course, it's always been important to bring in new people, bring in new energy, bring in new talent, bring in new ideas. That has also been part of our movement's success, but the fact that there is this bond of relationships and connections amongst people who have trusted each other and come to be family with all the button pushing that sometimes comes with family has really been very, very meaningful. Just to echo Bill, with regard to you, Larry, when I was at law school, I experienced it as pretty closeted, pretty closed. I didn't at first know any other gay people. I started coming out at law school. I didn't find it hostile. People were friendly, people were acknowledging, supportive. It didn't make a difference. It was easier and easier to keep coming out to more and more people and so on. But really the only mention of gay stuff that I remember, at least in the first couple of years, was when I was in your class as your con law student. And I remember the days you taught that section of the treatise. And how much I felt honored and a little bit grown up when just a couple of years later as a young attorney, back in my hair days, I got to work with you and with Kathleen Sullivan on the NGTF case, the teacher's case, and then the Hardwick case. And how meaningful that was and how meaningful your standing up for us then was and ever since. I feel like really very much the same with everybody on this panel. We've been in each other's lives and in each other's business and in each other's arguments for decades. And it has been really wonderful. So back to law school. Law school was pretty closeted but, as I said, not hostile. I started coming out at the time the little group that Bill mentioned, I discovered there was this little group, it was called COGLII, Committee on Gay and Lesbian Legal Issues. The yearbook photo of the group that year, that I first started going, featured a bunch of people who literally, at least as is my memory, had bags over their heads. Only one person was willing to have his face in the yearbook at that time. And he was not gay. He worked with you in May, Bryan Cacucha. Not a gay man, but a total supporter. But what was interesting was, I think I must've been, that's my memory but as you can see where I'm positioned on this panel, memory is not all it used to be. But what I would say is that maybe I was just there at this very transitional moment, because by the end of my law school time, it had shifted dramatically. Each year I found was different because different people would come in, as I was saying earlier. And in my third year of law school, we had a cohort of 1L's who were much more out and much more militant and much more engaged and much more annoying. We've all again become very close friends, but we fought very bitterly and very intensely in this little group about what the activism should look like and what the styles of activism should be. We launched a project to have to write to law firms across the country explaining to them Harvard's policy of nondiscrimination and pushing for them to have to comply with this policy. That was a big step of activism that people felt in some cases quite risky because they were really putting themselves on the line both with regard to the school but also with regard to future employers. It was also the time when HIV/AIDS erupted in public consciousness. And we began reading Newsweek and so on about this terrible thing that was happening. And it still felt mostly out there, but it was happening, and it was coming. And of course it was also the dawn of the Reagan administration. Then one of the most hostile administrations we had. It was a very threatening and challenging, but also increasingly almost day by day, political time at which the silence and the closetedness that I experienced, with Larry being one of the few exceptions, at the beginning in '80, '81. By '83, you could already feel people being much more engaged, much more willing to take things on and much more call to action, both with regard to gay rights and with regard to HIV. WILLIAM B. RUBENSTEIN, PROFESSOR OF LAW: Thank you. In '80, you go right up to my first day of law school and seven days in 1983. Shortly thereafter in my civil procedure class, I figured out the guy sitting next to me, a fellow named Dan Gordon, was also gay. Perhaps the best thing about this experience was that Dan knew this 2L. We didn't know any 2L's, but Dan knew this 2L named Chai Feldblum. He said, wait till you meet her. She's a dynamo. I met Chai my first year of law school through Dan and have been close friends with her. Worked with her many years at the ACLU togethe. And Chai was a dynamo and was just, is, is, is. Evan said there was a new energy coming at the end of his time in law school. I think Chai exemplifies that for everybody. CHAI FELDBLUM: Well, thank you. And I'm also just thrilled to be here sort of seeing all of you. All the ones who are going to be taking this on to the next level. So, I love you already. OK. When I came to Harvard in 1982, I had been out as a lesbian for three years at that point. I came self-identified as a lesbian. Do you really think it should be such a big deal? Very excited to go to my first meeting of the COGLII, the gay student group. I walk in. There were like 15 guys there and one woman. I go straight to the woman. Turns out she's a 3L who will be graduating at the end of the year. I'm like, damn, not really good for my social life. But, the other thing is, I was very much of a feminist. So in terms of my time at Harvard I was very involved with the Women's Law Association. I was involved in public interest fellowships. I was lucky enough to be a research assistant for Professor Tribe. So while I kept going to the meetings here and there, I wasn't actually involved that much in that group. The second thing that happened that affected my LGBT life also concerns Dan Gordon. Because I had begun to think, well, you know, and I think maybe I'm a bisexual as opposed to a lesbian. Part of that was, well, you know what, I think I like guys. My father would be really happier if I were with a guy, so why don't I just. There's this guy, Dan Gordon. He had told me, this is great. Well by February, he told me because I was like, what's going on and he's like, I'm gay, and I'm like, oh, good, me too. But I still was in this I could be a bisexual mode person and so I dated a guy I met last year of law school. I have to say I am much happier being with women. I'm all about the B part of LGBT, but I feel literally one of the greatest gifts of my life is that I've been able to live, honestly, happily with integrity as a lesbian. So I get involved in LGBT work really because of the AIDS epidemic. My first job after my two clerkships was with the ACLU Aids Project, which was started by a, shall I say, phenomenal woman, Nan Hunter, who started both that project and the Lesbian Gay Rights Project at the ACLU at that time. My work primarily focused on legislative efforts dealing with people with AIDS and HIV. But, because of that, got integrated with some LGB, there was no T yet, work. So one example, one of the first amendments that I fought against was what we call the No Promo Homo Amendment. In a bill that finally provided money for HIV testing, the Senate added a provision that said that none of the money could be used to promote, directly or indirectly, homosexuality. Directly or indirectly, none of this money for AIDS funding. So we wrote a counteramendment because we couldn't get it out 30 years ago, that said, none of the money can be used, can be designed to promote, directly or indirectly, none of the money can be used to promote directly, homosexuality, heterosexuality, or bisexuality. Because we figured government didn't really have to be in the business of promoting any sexuality. We could do that fine for ourselves WILLIAM B. RUBENSTEIN, PROFESSOR OF LAW: Great. Thank you. So Chai and I were working at the ACLU in the late '90s and starting to burn out shortly thereafter. As I was doing this long or longer, all of a sudden in the early 1990s this new person burst onto the scene. I remember the first time I met Suzanne Goldberg. We were at a lesbian and gay litigators roundtable and she was an incredible breath of fresh air. Brilliant, full of energy. Like me and Chai and so many other people in this room, another disciple of Martha Minow's, our former dean, ready to come and join us. So Suzanne, you're next chronologically. SUZANNE GOLDBERG: So I also am just thrilled to be here. If you had asked me in my first year of law school if I would ever be sitting on a panel talking about LGBT rights, I would have said you were out of your mind. And, in fact, everybody on this panel, I think, had much more come into law school having sorted out their identity as lesbian or gay or sort of bisexual and lesbian than I had. There was no way. I didn't even know about COGLII but when I heard about COGLII, the acronym is C- O- G- L- I- I-, I think, and it sounded a little bit like an amoeba or something. And there was just no way I was going to participate in any kind of lesbian and gay organization or LGBT organization. I did date a woman my first semester of law school but it was not a political identity. For me I was not coming out in that sort of a way. At the same time, I was involved politically and in all sorts of public interest law, in an assortment of civil rights issues and I thought, actually I don't think I've ever told this story in public but I'm going to now. So in my third year of law school-- it's not that that exciting. Just so, I didn't [INAUDIBLE]. In my third year of law school, there was a visiting professor named Regina Austin who was fantastic. She had been a professor of mine. And the law school, I think, or as far as we knew as students, was declining to invite her to join the faculty here. so many groups concerned with an array of civil rights issues got together and were protesting and one of the forms of protest involved getting together. I don't fully remember what it was called but it was kind of our rainbow coalition of diverse groups out in front of the [INAUDIBLE] standing up and saying what we thought about the need for diversity at the law school. At one point, somebody from COGLII got up in front of the group of students who were watching and maybe some faculty and said, I'm going to come up here as a representative of the gay organization and I invite others from the organization or others to join me. I wasn't part of the organization but I did stand there and think I need to be there, right? I can't not go. And so in this kind of out-of-body experience, I walked up there and stood with him and I'm sure there were other people there but I have absolutely no recollection of who any of them were, and stood there in front of everybody while he talked and said whatever he said. Afterwards, I got on my bike and I rode back to my apartment and it was like this sort of physically and emotionally and intellectually transformative moment where I realized that all of my efforts to retain this information for myself that I was a lesbian or to a close circle of friends who I could trust, I had just let it go. And I hadn't done that with really any calculation. I hadn't done it with a lot of forethought. It just was compelling to me in that moment. It was, in so many ways, this transformative experience that didn't have to do with classes here at all, but it helped enable me to go down the path that I went down. The one other thing just from law school I want to mention is that, I was editor-in-chief of the Women's Law Journal. We published, I think one of the very first articles on lesbian-baiting in the military, which was, again, one of these newly energized won out by one of these newly energized 1Ls, Michelle Beneky and another person and Michelle went on to begin the Service Members Legal Defense Network that I'm sure we'll hear more about from others. And I'll save my tribute to Larry Tribe till my next comments. WILLIAM B. RUBENSTEIN, PROFESSOR OF LAW: Terrific. So Keith Boykin's my favorite person on this panel for one simple reason, although I love them all equally. In 1989, students at the law school started agitating that the school should have a course on sexual orientation in the law. There never been a court like this before. Some of my former professors thought I was the right person to teach it. It was a great opportunity. In 1990, I think, I started teaching sexual orientation law courses. Actually the time, there was no case book or anything and I put together materials to teach the course and my students helped me turn the materials into a case book. One of whom, Jennifer Gordon, is sitting right here was part of the architect of the case book. In the second year I was teaching, there was a guy who sat in the back of the class and was obviously struggling to come out, named Keith Boykin. He was kind of a quiet but star student who I took note of. This was in 1991, I think, and Keith was struggling to come out. Within a year, President Clinton was elected and Keith was working in the White House as the liaison in LGBT issues. So a meteoric rise of a Harvard Law School graduate from the back of a class on sexual orientation law to the White House. I can't tell you how spectacular that was in that time, at that moment. I mean, if you think about everything people have been saying, to go from what Larry described as his law school years to having Keith in the White House, it's quite amazing. Welcome. KEITH BOYKIN: Thank you. Well, my story picks up where Suzanne's story ends. In that, the organization COGLII had changed to COGVLI, by adding a V, in my second year I think. But I was an activist on campus and the group that Suzanne referred to was called the Coalition for Civil Rights. And it was seven different affinity groups, including the Black Law Students Association, the Women's Law Association, and COGLII, and others. We agitated by holding protests. We went to the dean's office and had held sit-ins, went to the president's office. And one day I remember I was standing outside of the faculty meeting in Pound Hall when all of the faculty members strolled out after the meeting. The dean of the law school walked by, Robert Clark, who I just saw a few moments ago for the first time in years, and he walked by and I asked him, I said, hey, Dean Clark, why don't you come and talk to us? And he continued walking, ignored us. So I called him again, I said, hey, come back and talk to us. Again he turned around, didn't know who I was and kept walking toward the door. So that point, I grabbed my backpack and slung it over my shoulder and took my sign I'd been carrying and put it under my arm and started racing to the door to catch up to him. The Dean of the Harvard Law School, it's a true story, Robert C. Clark, saw me and literally began sprinting across the campus to get away from me. It was a shocking thing to me. I ran track in college too. I went sprinting right after him. It was just an amazing experience that here it was I was chasing the dean of the Harvard Law School across the campus. We invited members of the press to our events and there was a photographer from the Boston Globe who took a picture of me. That photo appeared on the front page of the Metro section of the Boston Globe the next day. So I sort of became infamous on campus as being this agitator for these issues. We took this case all the way up to-- We actually filed a lawsuit against the law school for discrimination in the selection of the faculty. We argued the case ourselves as students. We took the case all the way up to the Massachusetts Supreme Judicial Court. We lost on the issue of standing because they said we were, I think, incidental beneficiaries. I didn't realize until last night-- I was having dinner with Jansen and he told me this case actually created some sort of precedent, which I didn't realize that, but that was an interesting development for me. But it was also the time when I came out. I came out in law school, as Bill mentioned. I took two courses-- Race, Racism, in Law and Sexual Orientation in Law at the same time, one by Randall Kennedy and one by Bill Rubenstein. I kept seeing that the arguments that were being used in one context were the same in the other context. I struggled with how come it was acceptable to use these same unjustifiable arguments in the sexual orientation context that had already been disbanded or discredited in the racial context. So that's what led me to sort of pursue this whole sort of avenue that I've been on for the rest of my life. But just one quick story about my coming out experience. I was in law school. I went to a bookstore at Harvard Square. I found a book or two that seemed to interest me. There was no LGBTQ section at that time, just the gay section. I took the book home. Read that book, that entire book, that night and I came out to myself that day. The next day, I came out to my mom in Killeen, Texas. I called her up on the phone and came out to her. It was a very difficult conversation. The following day, I went to campus and started coming out to other people. And that was really, really difficult because I didn't know how people would react to me coming out because I'd been with these activists on campus. And I'd been involved in [INAUDIBLE].. But it was a very positive experience, except that it was a little traumatic. I didn't want to actually come out, I wanted to be out. So that's when I discovered what I have now called The First Rule of Coming Out, which I learned here at the law school. And the rule is this-- if you tell the right people, you don't have to tell everyone else. I'll just quickly tell you how it worked with one quick example. I didn't realize how many people found out I was gay until one day I was sitting in a meeting with, I guess I can mention his name, with my friend and professor Chris Edley, who I'd known from previous work in the Dukakis campaign so he was more than just a professor. He was a friend of mine. After the meeting, he closed the door and sat on the edge of the desk and he says to me, so I hear that you're gay now. Is that true? I said, yes, but how did you know? And he told me that one of the other professors had told him about it. And so I was shocked, because for a long time I'd actually labored under the delusion that the faculty at Harvard Law School had more important things to do with their time. I guess I was wrong. WILLIAM B. RUBENSTEIN, PROFESSOR OF LAW: Just a delusion. I first met Brad Sears when he was a college student and he applied for a job as a summer intern at the ACLU and I interviewed him and did not hire him. There's an activist playwright in New York, Larry Kramer, who people have probably heard of. The next day, Larry cornered me at a gay function and started screaming at me at the top of his lungs, why didn't you hire Brad? I never made that mistake again the rest of my life. Brad was a law student at Harvard. He worked with the ACLU with me for a summer and I realized immediately, he was brilliant. Fast-forward a half a decade or so. I was teaching at UCLA and trying to get out of doing LGBT work. I got a phone call from a guy named Chuck Williams who said, I'm thinking of giving a lot of money to a law school. I said you should start a think tank. And he said, what's a think tank? The next thing you know we got together, and Chuck and I spent a lot of time figuring out how to start a think tank. We started something at UCLA Law School called The Williams Institute, which is now called The Williams Institute. Which, I basically did two, three things. I convinced helped convince Chuck to do this, got the law school to set it up, and then I convinced the law school to hire Brad and got out of the way. Brad built The Williams Institute into what I actually think is probably the most significant academic institution connected to these issues anywhere in the world. Actually one, of the most significant academic institutions connected to any issue. It's really quite an amazing thing what Brad did. So I'm very proud to say, I got out of the way and let him do it. Brad. BRAD SEARS: Thank you, Bill. I'm really honored to be here and on this panel as well. I guess I have to say the same summer that I applied to work with Bill for the summer and he didn't hire me, Evan did. I ended up having the great pleasure of working with Bill after my 1L year. So my experience here, I would say, I was a wreck, the gays were bad, and the straights were better, and the institution was amazing. If you want to know about how I was a wreck, there's an essay online called "Queer L" that will tell you about every angsty thought I had in my 1L year. In 1994, when I wrote that for a class here and the law professor turned it into an online journal, we didn't realize that anything that went online would never go away. So feel free to read more about that. And it names names online. But I was very out. I arrived here queer. I didn't come out to my parents until Thanksgiving break my first year. I didn't come out to them when I arrived back in Missouri on the first day or on Thanksgiving or on Friday, the day after or Saturday. I waited till we got to Kansas City International Airport and that security line was right in front of me. I turned around and said, I'm gay. By the time I got back to Harvard, they had called my roommates and told them. Unfortunately they were both gay. And they had had a minister reach out to me and unfortunately he turned out to be gay as well. So that was thwarted, but it was rough. I think it was rough for me personally dealing with the kind of family part of coming out. Then two years later, I spent a year here with the lymph nodes in the back of my neck kind of growing larger and larger and realizing I had the symptoms of early HIV infection. But knowing that if I took that test, I probably wouldn't finish law school. And that was in 1995, so I'm happy to be here today for a lot of reasons. I got here and I was queer. So I was queer-identified when I got here. I'd been involved with Act Up, which Bill and others really helped defend, with Queer Nation. And I got here and there was no one out in my first year and that was kind of shocking. The gays were kind of bad. Unfortunately, I missed Keith and that class and what I ended up with was kind of the good gays and I was the bad gay. And the good gays at that time really felt everyone should quiet down. They would say COGLII and kind of make fun of the name. One thing I will take credit for, is I got rid of the COGLII, [INAUDIBLE],, and actually changed the name to something that was harder to make fun of. But they really kind of looked down. There was a bunch of people, not everyone, that looked down at activists at that time, which just sent me in the other direction. So I started wearing skirts to class. I did at that time illegal needle exchange downtown on the weekends. One time to crim law I brought this huge plastic container of dirty syringes and sat on my desk. For some reason, Richard Parker let me, let me do that. So I kind of went in the other direction. And while there wasn't a lot of support in the LGBT community, I have to say the allies, and I think you were speaking to this, in kind of the coalition groups was amazing. So by my second semester, the incredible, Van Jones who was at Yale had brought a protest to Harvard. It was a hunger strike against Guantanamo, at that time which wasn't about torturing people but holding Haitians there who are HIV-positive. So suddenly I was working with a lot of straight allies on this issue. We did a hunger strike here for a week in support of then President Clinton releasing them. A campaign promise he made that he did not keep for quite a while. By the time graduation time rolled around my first year, the "don't ask, don't tell" policy was in play, had not been passed yet by the Congress, but Colin Powell showed up here to speak at commencement. Again, mainly working with straight allies, we staged a protest at commencement. We decided to have one pink balloon for every person that had been kicked out of the military while Colin Powell was in his position and that resulted in 7,000 pink balloons facing him when he gave the commencement. Which, was a big nice visual, flashy picture all over the papers after it happened and brought a lot of attention to the issue. So the gays were a little hard. The straights were good. I have to say the institution was amazing, both in terms of the fantastic alumni. We had a kind of 25th anniversary of Stonewall and Chai came and spoke to that and some other folks. That was incredible. Bill was teaching his class. I didn't take it. There was Zita Lazarini who was here teaching HIV and the Law, and she's still really active on these issues. Mary Bekker came and combined what you were talking about and taught a really great seminar on race and sexuality, and then published my personal autobiography online, which was there for years to come. So I look back. I don't think I appreciated it at that time but I was really allowed to learn about and explore these issues by the institution. And I think in a way that was like really ahead of its time. WILLIAM B. RUBENSTEIN, PROFESSOR OF LAW: Thank you, Brad. Janson, you're last, youngest. Bringing us into a new millennium. We now also will hear your story and then turn and talk about some of the substantive issues as well. So take it away. JANSON WU: Thank you, Bill. And thank you for having me on this panel. Like Brad, I was super out by the time I got to law school. But, unlike Brad, I actually wasn't involved in any LGBTQ activism before law school. It wasn't till, I think, my third year of law school that I had my first LGBT activism moment, which I'll talk about in a second. But just to give a little background, just to give you a little context, in college, that was when Ellen came out, that was when Matthew Shepard was murdered, and so LGBT issues were very much on the forefront. There was an active group at college. For me, I was an activist in college as well too but, like Chai, my activism really kind of was born out of feminism. I was a women's studies major in college. And so I was really focused on kind of domestic sexual violence issues and women's rights issues. I did that because I really wanted to focus on an area where I had privilege. Not an area where I would directly benefit but rather a place where I could use my privilege to make social change. And so I was very much focused on feminism in college. Got to law school and continued that focus. It wasn't until I think it was my second year of law school that the university reversed its policy and allowed military recruiters on campus. This was in response to the threat from the administration to implement the Solomon amendment and withhold federal funding to any universities that forbid military recruiters on campus. Just to give you a little context there as well, too, 9/11 happened my second year in law school. And so we're in this era where there was a lot of warmongering, and a lot of patriotism in the air and a lot of pressure to go along with that. For me and for my friends, it felt like such a huge insult that our university would so easily allow recruiters onto the campus. And not just do that, but reverse the position knowing that that position was right before. And so what we did is we went ahead and we signed up for all the interview spots with JAG on campus recruiting. That was my first act of activism, was to make sure that they heard from us in a respectful conversation discussion, but that also that we made it more difficult for them to recruit folks on campus. What was interesting following that, though, is our-- by then the name, thankfully, was Lambda, and there was dissension within Lambda as to whether or not they would support our action. Again, I think post 9/11 there was so much pressure to support the troops and be patriotic and support the military. And there was a group of LGBT law students who thought what we were doing was unpatriotic. There was actually a vote of Lambda as to whether or not they would denounce us in our actions in the school newspaper. Thankfully, that vote failed. But that gives you a little bit of a sense of divisions in activism amongst the LGBT community. Anyway, suffice it to say I've been super gay activist since then. My very last year of law school, I had the honor of driving down with my friends to the Supreme Court to watch the Lawrence v. Texas arguments. We camped out outside all night and were the very first ones in line. That was really the beginning of my career. WILLIAM B. RUBENSTEIN, PROFESSOR OF LAW: Wow. Thank you. So we are halfway through our 90 minutes. I want to try to do two things in the time we have remaining. One is to have the panelists discuss some of the substantive issues that have pervaded our times. The second is to leave open some time for people to ask questions and participate from the audience. It's interesting, actually, Larry, you talked about the teacher's case and Chai, you also talked about the no promo homo. When I was in law school, really the only gay rights cases that had ever been done were more or less free speech cases. Where everything kind of began in some ways because the right to speak and organize is the underlying effort to get everything going. As it did, I think, the sodomy cases and Bowers v. Hardwick. It's really the place to start for so many years or for almost two decades. It was the organizing principle of these issues. So Larry, I'm going to ask you to start. Talk a little about your experience arguing Bowers v. Hardwick. But I'm going to, rather than try to manage this, I'm going to say, why don't we all just try to jump in and talk to each other about various issues and try to kind of move along and bring a discussion up. LAURENCE TRIBE: Sure. First of all, I guess, I didn't begin when I talked the last time by thanking you for inviting me and thanking all of you for being here. It's a great honor. It's not something that would have happened 10 years ago, 20 years ago. It's terrific. As to Bowers-- WILLIAM B. RUBENSTEIN, PROFESSOR OF LAW: We always would have invited you, Larry. We would have invited you 10 years ago we would have invited you 20. LAURENCE H. TRIBE, PROFESSOR OF LAW: And I hope 10 years from now. Evan got me involved, I think together with Kathleen Sullivan, in both NGTF v. The Oklahoma School Board and Bowers. In Bowers, I met Michael Bowers. He was a really sweet guy, unfortunately died of AIDS not all that many years after the case. I kind of knew it was not a cause that whose time had really come yet. I especially knew after arguing NGTF that we were going to face a hostile Supreme Court. I strongly urged that we not take the case to the Supreme Court. I hadn't gotten involved at the lower level, but we really didn't have any choice because good old Bowers, who was the attorney general of Florida, sought cert from a lower court decision that had handled the issue rather narrowly and said only that there should be heightened scrutiny and didn't really resolve the issue. So at that time, when there was lots of panic about AIDS and confusion about how HIV was transmitted, there is the notion that that might be a powerful justification for restrictions on anal and oral sex. But I knew that the Supreme Court didn't want to talk about those things. They were embarrassed even confronting their existence, even though many of them undoubtedly were involved at least in oral sex. So, I didn't think it was great to be arguing the case. But on the other hand, we had no choice. And I was very honored to be asked to argue it. And when I did, I really got into the subject and thought a lot. Here, there were a lot of divisions within the LGBT community. Divisions over whether it should be presented as a privacy case or an equality case. It turns out, in my view, that the two are inseparable. I think of the double helix in which they surround an axis of dignity. But in any case, we didn't really have a choice. That is, no equal protection issue had been preserved in the case, Michael had not publicly identified that he was gay. The record contained no evidence of who he was with when he was having oral sex. And so I thought that the only way we could argue it was to basically make the argument that this is an aspect of personal liberty. The law in Georgia had not distinguished straight from gay, so-called sodomy. They had treated them identically, although on the ground and in practice, they were obviously treated differently in terms of selective arrests, selective harassment, selective prosecution. The court that I was talking about did how the sanctity of the home and personal liberty, all this stuff that seems standard now, and Lewis Powell leans forward from the bench and says, Professor Tribe, you're arguing the case just the way I would if I were you. And I thought, uh oh. It turns out later on, a memo came out from his chambers where the attempt to invoke the home and notions of personal liberty that applied to everybody, really turned him off. He told his law clerk, he said, Professor Tribe, with his usual hyperbole and rhetoric, makes light of the center of American life. The home is sacred. He sullies it by addressing it in the context of gay sex. He said, I don't think I've ever met a gay person, so I don't even know what he's talking about. In any event, we lost the case, 5 to 4. I was hoping to get some powerful dissents, which we did. One of the things I didn't know was that we had already in fact gotten Powell's vote at first. He gave a talk after leaving the court to a bunch of students at NYU and he said, I think I only made one mistake when I was at the court, and that was my vote in Bowers v. Hardwick. And I wrote him a letter saying, better late than never. Turns out, however, he still didn't get it. Because in his view, the reason he said, I don't think the case mattered because people really aren't prosecuted for this offense. Michael Hardwick was not thrown into jail. He actually brought a civil rights claim himself. What he didn't realize was, of course, some people are prosecuted. But the main thing-- and it really emerged finally, finally in Justice Kennedy's opinion in Lawrence-- was that this was an excuse for discriminating on the basis of sexual orientation. In every other context-- housing, immigration, adoption. It really didn't matter if people went to jail. Or it mattered, but if they didn't go to jail for having oral or anal sex, they were nonetheless branded with a scarlet C for criminal. And it was possible to argue that because what they were regularly doing was a crime, they weren't entitled to any recognition as people with equal rights. So when I lost that case, I've ever since been teaching con law, I told my students, I'm sure that not only you, but I will be alive when Bowers is overruled. Of course, 17 years later, it was. I wrote the ACLU's main brief in Lawrence. It was an extraordinary moment. I was in a courtroom filled with crying people when Kennedy announced the decision. I had testified for Kennedy after testifying against Bork. Partly, because in his earlier jurisprudence, I saw the promise that he would rule what I thought was the right way in cases like that. So when he did I felt really an enormous kind of vindication/ also sadness for all the people who had come before and anxiety about what was going to come next. I thought it would be same-sex marriage. It turned out to be. And Obergafel as well as Windsor were extraordinary decisions. But now it's hard not to be a little sad. I mean, here we are celebrating the triumphs with Neil Gorsuch and Clarence Thomas and a bunch of justices, who if Donald Trump is re-elected-- and he may be, not only may he last out his term, may be reelected-- we're going to face for the rest of your professional lives an even harder struggle than many of us went through. Because there will be pushback. If Kennedy votes what I think is the right way in the Masterpiece wedding cake case, maybe that pushback will be held off for a while. But I know where Gorsuch and unfortunately the Chief Justice and Clarence Thomas and Alito and the person who replaces either Ruth Ginsburg or Anthony Kennedy are going to vote on these cases. So all of our progress has to be focused in the foreseeable future on legislatures and on organizing and on working from the ground up. Not looking for the highest court in the land for rescue. So that was a little more to say about the Bowers experience. I probably flashed forward too much, but I can't help thinking about that because that's what it's really about. KEITH BOYKIN: Can I just respond to the whole Neil Gorsuch thing? It's a slightly tangential, but I think relevant, point to move forward in the conversation in that one of my classmates-- I'll mention his name, Phil Berg-- was also a classmate of Neil Gorsuch. They were both a year ahead of me in law school. Phil was a gay man and he was out. He was in the press, in the New York Times and other places, advocating on behalf of-- and Phil is a friend of mine-- on behalf of Neil Gorsuch's confirmation because he knew him and that Neil Gorsuch came to his wedding. I think that's appalling. And I don't mean to call him out when he doesn't have a chance to defend himself. But I just think it's appalling. This is the same mistake we made with Clarence Thomas. When there are African Americans who say, well, he's black, he's a good guy, I know him, or whatever. We have to get smarter. We can't just because we like someone support them regardless of our personal history. We have to think about who they are and what they will do. I think it's time for us to start thinking strategically when we make those statements and not just thinking about what's in our personal interest. CHAI FELDBLUM: So I mean, I think Larry's absolutely right to say there's going to be work to be done. Absolutely. I will say, listening to this, I was one of the people in that courtroom when Lawrence came down that did cry, didn't expect to. And 17 years earlier, I had come to the court to clerk for Justice Blackmun literally right after Bowers came down. I would be calling-- at that point again, no, no internet, so I was calling that Supreme Court line every day to see if it had come down and to see how Blackmun had voted. Because I was already going to be his clerk. So to me-- LAURENCE TRIBE: And you may not know, he wrote a wonderful dissent. CHAI FELDBLUM: He wrote a wonderful dissent but here-- which was supposed to be the majority but again, just think about-- so I want to say this in terms of thinking about both to your question of what substantive issues but going forward. His dissent, Blackmun's dissent, said, yes, there's a right of privacy. OK. There were two aspects of that, right? One is the family, the sanctity of the home, you know. One could say, OK, and that's where the right to be able to have sex with the person you love comes from. But that's not how the dissent was written. Because the other part of privacy is to do in the privacy of your home something like read pornography or whatever. But you have the right to do that. That's how that dissent was written. Very important in terms of a result, if we had one, but it was where the justice was. When I met him, that's what he was. So two things, we had to have moved the moral conversation forward. Michael Sandel, whom I went to hear this morning, was a huge person in my thinking because his piece on abortion and homosexuality said so long as you're just going to be that that's something you should tolerate, it will not get the full protection. It has to be something that people think is actually morally neutral. I mean, does it have to be morally good? I always used to say, gay is good, not because being gay is any more better morally than being straight, but love is good. That's the good and being gay takes nothing away from that. Therefore, gay love is good. It has taken so long for this country to even come to that place of love is good, and when you're gay, that doesn't take anything away from it. I believe regardless of who's going to get on the Supreme Court and everyone here has to fight to the utmost, regardless that, we are not going back on that normative belief in this country. BRAD SEARS: I just want to jump in right off of that and just something I've been thinking a lot about. What is my job in the movement? What are we doing? I think, when I was law school and for so long, it was about using the law to gain rights and resources. Now when I think about it-- and it goes right into what you were saying, what everyone has said so far-- it's about healing. And I think for community, it's really about healing and it's about connection. It's about connection in terms of personal relationships, in terms of family, in terms of society, Those aren't byproducts of the work that we've done. They really are the central focus. And I think Evan discovered this in his work on marriage when the message needed to be about shared values in terms of love and commitment, as opposed to the economic benefits of marriage. I just think it's an issue of the right message. It really was the issue of the right motivation. So those opinions by Kennedy are so healing because they deal with dignity, that they recognize our families. That's really, I think, if we approach our work in terms of the healing that needs to be done for the trauma that most LGBT people still experience when they're young and the connections that need to be made, that our argument should be shaped by that and what we focus on needs to be shaped by that. LAURENCE TRIBE: Can I just say one more thing about the healing? Kennedy went out of his way in Lawrence to do something the court has actually never done before or since in its history. That is, he said, it's important for us to say that Bowers was wrong the day it was decided. Because of the insult delivered to a whole community. It was not just raw. I mean, you know when the court looks back at things like Plessy v. Ferguson, it says, you know, things have changed, education is different, our consciousness is growing, and there is that element in some of Kennedy's talk. But he really said it was a moral wrong when it was decided. On the other hand, in his marriage opinion, he says something that I sort of regret. He says, one of the main reasons that same-sex marriage is protected is that marriage is the only way you can avoid loneliness. You reach across the bed at night and if you're not married, you have no one. Well, I can testify that that isn't true, number one. And number two, it is too bad that he sort of privileged that state as marriage. I've spent many years married, I can't say it's good. But it's not the summum bonum and people who are couples or not couples and who choose not to marry have rights as well. Hopefully, someday as the culture evolves and as it embraces love, we will get there. EVAN WOLFSON: Well, we could have a whole discussion about marriage and how that fits. One of the reasons I wrote my paper here at law school on why we should fight for the freedom to marry was that I believed, and I had become to believe in law school, that the legal part of our work is in some ways the least important part. That what you need to do is to get the decision-makers, whoever that decision-maker may be-- judges, justices, legislators, the public-- to see who you are and to see the values and to want to do the right thing. Then our job is to give them the legal roadmap. The legal roadmap, to me-- this is probably why I got a B on the paper-- was the least interesting part. The reason I think that's important is because that is exactly how we then proceeded to win. In the Hardwick case. The operative sentence in the majority anti-gay opinion was Justice White saying that any idea that there's any connection between this court's precedents on marriage, procreation, child-raising, on the one hand and homosexuality on the other, is at best facetious. When I got that opinion, I can still vividly remember this moment. It was the one moment in my time where I actually questioned, should I even be a lawyer, do I even believe in the system, for a day or two. But I remember saying, the reason this happened is because we have to show the country and the court that, in fact, there's every connection between procreation, between family, and marriage, and gay people. The first 17 years of our modern movement struggle from 1969 to 1986, were the leave us alone, don't attack us, don't harass us, don't persecute us years. The next 17 years, little civil rights karma, from Bowers from Hardwick to Lawrence, when we succeeded in overturning it, were the years in which we actually fought not to be let alone but to be let in. We claimed that vocabulary of marriage, as I had argued we should in the paper. And while some may go too far in their rhetoric and some have a more conservative way of talking about it, others have a more liberationist way of talking about it. To me, it was about claiming that central language of connection that would help people understand who we are. Help them see who we are. In Blackmun's dissent, he wrote about the willful blindness of the majority who refuse to see how these values of love and connection to family apply to these people. Gay people. And we had to cure that willful blindness. And I'll just end by saying to the other part of what you teed up here, Larry, is, this is the work we have at hand now. As lawyers, yes we litigate, yes we write legal roadmaps, yes we do legislative lawyering, yes we use our legal skills and legal language and the legal roadmap and the doctrines and all these things that I got a B on. But actually our power and the real work of change comes from, as lawyers, and as citizens, and as organizers, and as friends, and people who can speak and engage, is in engaging people and opening their hearts and minds and eyes to the vision of the right society that we want and doing the work of creating the climate in which decision-makers, political or judicial, get us where we need to be in terms of the law. And that is the way we're going to get our country back on track now. It's not about just legal argument. It's not about a narrow idea of what our legal tools are. It is about our ability to get people to see and to create the legal and political mechanisms, including litigation, that get our country where it needs to be. JANSON WU: So if I could just say add one other thing to Evan. I just want to integrate the importance of what Evan said about changing hearts and minds with the law and litigation, because I actually think that the law has so powerful tool in two ways in changing hearts and minds. The first is that it's a powerful framework for storytelling. You have the plaintiffs who've been harmed, and you have a story that you can tell people that they can connect with. And that's exactly what we did here in Massachusetts in the Goodrich litigation, which was one of GLAAD's cases where I work, is to tell the stories through litigation. And then the second thing where law can help prompt that conversation is by actually forcing the conversation, right? So once GLAAD won the first case in the country allowing same-sex couples to marry, that wasn't the end of the story. It is only beginning or maybe the midpoint. And Massachusetts, for those who weren't here, went through just a transformation in the course of three to four years because we had to protect that victory from being voted in the ballot. And so folks had to talk to the legislators, had to talk to the neighbors. I was actually just talking to a legislator the other day at the statehouse who was there during the fight. And he still says that that vote he made to preserve marrying in Massachusetts was the most important vote of his career still. WILLIAM B. ROSENSTEIN, PROFESSOR OF LAW: Suzanne, can you talk and then take some questions? OK. SUZANNE GOLDBERG: So I went from being afraid of being a member of COGLII to my first job after clerking, and then for 10 years at Lambda Legal. So not quite to the White House, but to becoming a professional gay, as some people say. I remember-- and working with Evan while there-- and I remember standing at the elevator at Lambda. And I was pretty new as the Skadden fellow, and their first to an LGBT organization, and talking to a colleague, Mike Isbell, who also went here, I think, and asking him for some advice. And he said, just don't judge your value as a lawyer by your win-loss record, because you're going to lose a lot. And just to pick up, I want to go back to what Evan was saying, it was a moment where we had greater capacity to pull in allies across a range of groups. To try to meet our decision-makers and focus on the courts here where they were, right? And I strongly believe that that whether we're in a legislative context or litigation or the public forum, people don't come over because you want them to come over. They come over because you meet them where they are. And so in litigation-- and I'll talk a moment about Roemer and a moment about Lawrence, because I was involved with the litigation of both of those. When we were at the Supreme Court, it was very important to me to get as broad a range of amicus briefs as we could. We worked intensely with all of the civil rights groups, the Legal Defense Fund, and others who filed incredible briefs, which were to me important for two reasons. One, to get their legal analysis and their positions before the court, and two, relating to the public domain to have those conversations, right, so that organizations report on their work and they say, hey you know, we're standing up for gay rights here, which wasn't a thing that seemed so obvious at the time that organizations or law firms or many entities would do. Also very important to me was to try to get state bar associations to join the brief. And it turns out, as I discovered at the time-- maybe you all know-- there are actually rules about which state bar. Some state bar associations can't exactly sign on, some can. My interest at that time was, I mean, sure I wanted the bar associations on the briefs, but more I wanted to get that question into their forms so that they would have to debate it and start having the conversation, because the only way to get the conversation to move is to start having it and having it in many, many places. And I think each of us in various ways has done that in our work and that is to me sort of strategic advocacy wherever you take it, ask the m have the conversation, I'll just say one quick thing about Lawrence, which is I remember I was working after Roemer was decided, sort of had a gap in my docket, so all of these anti-gay initiatives at that moment had gone away. And Evan had moved on really fully to marriage. He had been working a lot at Lambda on sodomy law litigation, and I wound up taking that up. And I was sitting in my office, and I got a call from a guy I knew because we had done some work on HIV together for Mitchell Cateen, who, said I was talking to these guys who were arrested for violating the Texas homosexual conduct law. And I said, really? Because maybe many of you in the room know that there had been many efforts to challenge that law. And some of them had done kind of well, but repeatedly the civil litigation, the civil suits to challenge the constitutionality of the homosexual conduct law in Texas were ultimately rejected by courts on jurisdictional grounds or lack of standing basically. And so he and I talked, and I heard about John Lawrence and Tyrone Garner and then I remember walking down the hall to my colleague Ruth Harlow and saying, I think we just got the case that is going to enable us to get at Bowers versus Hardwick. And I have to say just personally, when I went down to meet them in Houston and work with the lawyers there, it was a little bit terrifying, because I had never done a criminal case. I had never wanted to do a criminal case. I liked the class ish in law school. But it was just not my thing. And so I worked a lot to try to make sure we preserved the issue so that we didn't screw it up when they pled no contest and that we could preserve it going forward. Can I just-- there's just-- no, I probably don't have time to say one story. No. I'll stop I'll try to weave it in. WILLIAM B. ROSENSTEIN, PROFESSOR OF LAW: Good. Let's do that. I know there are a lot of people in the room and I know people probably want to talk or ask questions. I see a hand going up already. Wow.
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Channel: Harvard Law School
Views: 1,245
Rating: 5 out of 5
Keywords: Harvard Law School, HLS, Harvard University, HLS in the World, Bill Rubenstein, Larry Tribe, Ben Sears, Evan Wolfson, Janson Wu, Suzanne Goldberg, Chai Feldblum, Keith Boykin, LGBT Law
Id: Ot7WkYItM4s
Channel Id: undefined
Length: 68min 57sec (4137 seconds)
Published: Fri Nov 17 2017
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