HUMAN RIGHTS MAGAZINE

Unfinished Journey

By Mark D. Agrast

When the U.S. government interned thousands of loyal Japanese Americans during World War II, the American Bar Association did not protest. Nor did it speak out against the anticommunist excesses of the 1950s. Or the racial violence and segregation of that era.

It was to end this silence that some of America's most distinguished lawyers and jurists founded the Section of Individual Rights and Responsibilities (IRR) in 1966. Since then, the Section has placed the ABA at the center of the debate on many of the nation's most pressing legal issues, from racial justice to the death penalty.

In the 1980s, the Section began to examine yet another issue that many members of the bar preferred not to talk about: discrimination based on sexual orientation. Among the early leaders of this effort was the late Dan Bradley, who, as the first president of the Legal Services Corporation, had been the nation's highest-ranking openly gay official. In 1983, Dan became the first chair of the IRR Committee on the Rights of Gay People (now the Committee on Sexual Orientation and Gender Identity), which it was later my privilege to lead.

Those first years were marked by painful defeats, as the House of Delegates repeatedly rejected a Section-sponsored resolution urging legislatures to prohibit discrimination based on sexual orientation in employment, housing, and public accommodations. But the House finally approved the resolution in 1989, laying the foundation for many subsequent accomplishments, including:

? a policy condemning hate crimes, including those based on sexual orientation;

? amendments to the Model Code of Judicial Conduct prohibiting expressions of bias or prejudice based on sexual orientation;

? a policy opposing government efforts to coerce universities to provide campus placement facilities to employers who discriminate based on sexual orientation;

? amendments to the ABA Standards for Approval of Law Schools to prohibit discrimination based on sexual orientation;

? policies opposing restrictions on adoption, child custody, and visitation based on sexual orientation;

? an amendment to the ABA Constitution recognizing the National Lesbian and Gay Law Association as an affiliated organization with a seat in the House of Delegates;

? an amendment to the ABA Constitution prohibiting state and local bar associations from being represented in the House if they discriminate based on sexual orientation; and

? a policy urging governments to ensure that unmarried surviving partners of same-sex relationships are eligible for victim compensation funds to the same extent as eligible spouses of heterosexual relationships.

These policies provided the basis for ABA testimony before Congress in support of such measures as the Employment Nondiscrimination Act, and in opposition to legislation that would stigmatize lesbian, gay, bisexual, and transgender (LGBT) Americans. The policies also enabled the ABA to file amicus curiae briefs in each of the three major Supreme Court cases that have addressed the rights of LGBT Americans since 1986-Romer v. Evans, 517 U.S. 620 (1996), which struck down a state constitutional amendment prohibiting governmental actions to protect gay and lesbian citizens; Dale v. Boy Scouts of America, 530 U.S. 640 (2000), which narrowly rejected a challenge to the Boy Scouts' discriminatory membership policy; and Lawrence v. Texas, a challenge to the Texas Homosexual Conduct Law in which a decision is expected as this issue goes to press.

The ABA did not take these actions solely out of concern for the plight of gay and lesbian Americans. It did so because discrimination undermines the rule of law-is antithetical to the neutral and evenhanded application of the laws-upon which our system of ordered liberty depends.

Nor would the ABA have acted had it not been for the emergence into our civic life, and into the mainstream of our profession, of an LGBT community that had lived for generations at the margins of society and as strangers to its laws, whose members could prosper in the law and other professions only by concealing their inner lives-by rendering themselves invisible.

The public costs of that invisibility were underscored by a conversation recounted by Justice Powell's biographer between Powell and one of his law clerks in 1986, while the Court was weighing the Georgia sodomy statute at issue in Bowers v. Hardwick. "I don't believe I've ever met a homosexual," Powell told the law clerk. And the latter, who in fact was gay, responded, "Certainly you have, but you just don't know that they are." Powell cast the deciding vote upholding the statute-a decision he later came to regret.

The Lawrence case presents the Court with an opportunity to correct that mistake. Whether or not a majority accepts the invitation of the ABA and other amici to overrule Bowers, the case will be decided in a climate that has been decisively transformed by the presence of openly gay, lesbian, bisexual, and transgendered people as law clerks, judges, and lawyers at every level of the profession and indeed, in every walk of life.

And so, whatever the outcome of the case, the movement for LGBT equality-like the larger struggle for human dignity of which it is a part-will go on. This special issue of Human Rights offers a look at the questions confronting that movement at a pivotal moment in its history, when much has been achieved but much more remains to be accomplished. We are yet in the middle of the journey. But whatever obstacles may lie in our path, that we will reach our destination is not in doubt.

left cover photo: Heidi Norton and Gina Smith, two of the plaintiffs in Goodridge et al. v. Department of Public Health, the Massachusetts marriage case; right cover photo: Michael Kantaras (center) and his attorneys from the National Center for Lesbian Rights