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From the Closet to the Courtroom

It’s been a long time coming, and much work has yet to be done, but there is a growing recognition that lesbian, gay, bisexual, and transgender people deserve the same respect and rights as heterosexual Americans. Five landmark legal decisions have influenced the course of events—not unlike the impact of Brown v. Board of Education of Topeka on the rights of African Americans. Carlos A. Ball, a professor of law at Rutgers School of Law–Newark, explains the events that precipitated these seminal lawsuits and their lasting impact.


scaleThe LGBT (lesbian, gay, bisexual, and transgender) rights movement has had many heroes, some who have received a great deal of national attention and others whose names we will never know. The advancement of LGBT rights has come about through struggles large and small—on the streets, around kitchen tables, in newspapers and on the internet, and in courtrooms across the nation. The list of individuals who have participated is long, and it includes the drag queens who congregated at the Stonewall Inn in New York City and decided in 1969 to push back against police harassment and intimidation; the gay rights activists who in 1978 defeated a California ballot measure that would have led to the firing of gay public school teachers throughout the state; and the many individuals who for the last three decades have advocated on behalf of people with HIV/AIDS. To this list we should add the members of the Rutgers community who have come together to mourn the death and acknowledge the life of Tyler Clementi, the first-year student who died in an apparent suicide last September.

One important piece of the struggle for these rights has involved lawsuits, and five seminal LGBT rights cases have helped to transform America’s social landscape. The cases have altered the ways in which the law regulates the lives of LGBT people and serve as testimony to the courage and resilience of the human beings behind the lawsuits, in particular the plaintiffs who refused to back down in the face of discrimination and the lawyers who took up their cause.

We Are Family: Braschi v. Stahl Associates (1989)
In New York City during the early days of the AIDS epidemic, Miguel Braschi’s gay partner of 10 years died from AIDS-related complications, and his landlord tried to evict Miguel from his rent-controlled apartment. Although New York law protects family members from eviction when a tenant living in a rent-controlled apartment dies, Miguel’s landlord took the position that two men in an intimate relationship are not a family under the law.

Miguel was not a gay rights activist, but his landlord’s contention struck him as wrong. With the help of a young American Civil Liberties Union lawyer, Miguel convinced New York’s highest court that his relationship with his partner merited recognition as a family. The court’s ruling in Miguel’s case was an important one because the judges accepted a key argument made by the LGBT rights movement, namely that families are defined not only through marriage, blood, and adoption, but also by the way in which individuals love and care for each other. Although, unfortunately, Miguel died of AIDS shortly after his legal victory, the ruling in his case has helped countless members of nontraditional families living in New York avert being evicted from their homes.

School Days: Nabozny v. Podlesny (1996)
The second lawsuit involved a gay teenager by the name of Jamie Nabozny, who grew up in rural Wisconsin in the 1990s. For Jamie, the problems started when he was in the seventh grade and some of his fellow students began taunting him with words like “faggot” and “queer.” By eighth grade, the antigay harassment became physical. And by high school, it was relentless. One day, Jamie was in a school bathroom when two boys attacked him from behind. One of the attackers shoved his knee into Jamie’s back, causing him to fall into a urinal, while the other proceeded to urinate on him. Crying and covered in urine, Jamie headed for the principal’s office—like he’d done so many times before—but was simply advised to go home and change his clothes. A couple years later, Jamie found himself lying on the floor of his school’s library as a boy repeatedly kicked him in the stomach—a beating so vicious that he required surgery—while other kids cheered.

On many occasions during those intervening years, Jamie and his parents pleaded with school administrators to stop the antigay harassment. But officials refused to discipline any of Jamie’s tormentors. And some even blamed him for the attacks because he insisted on being openly gay. Jamie dropped out of school, earned a GED while working, and eventually sued school officials with the help of the Lambda Legal Defense and Education Fund (now known as Lambda Legal). A year later, a jury found that the school’s failure to protect Jamie from peer harassment violated his constitutional rights. Jamie was awarded almost a million dollars for the physical and mental injuries that he suffered at the hands of his fellow students.

Jamie’s lawsuit forced school administrators across the country to take seriously the issue of antigay harassment. As a result of his lawsuit, many schools implemented training and disciplinary policies aimed at reducing the bullying of students because of their sexual orientation and gender identity. Although much more work is needed, Jamie’s pioneering lawsuit has helped to raise awareness of the antigay harassment problem in schools.

Help Wanted: Romer v. Evans (1996)
Angela Romero, a Denver police officer, was demoted and harassed by her supervisors because she was a lesbian. In the early 1990s, Angela and other LGBT individuals persuaded the Denver city council to enact an ordinance prohibiting employers, including city agencies, from discriminating on the basis of sexual orientation. The peace of mind that the new law gave Angela, however, was short lived: a few months later, voters approved an amendment to the state constitution prohibiting the enactment of laws protecting lesbians and gay men from discrimination.

The amendment’s supporters, by making openly gay people vulnerable to discrimination, had hoped to render them invisible by pushing them back into the closet. But Angela and a handful of other plaintiffs challenged the amendment’s validity under the federal Constitution. Their case went all the way to the United States Supreme Court. In striking down the amendment, the Court held that LGBT people are equal citizens in our democracy who must be treated accordingly.

As a result of Angela’s case, named for Roy Romer, the governor of Colorado at the time, state laws and policies that target LGBT people based on animus or disapproval are now constitutionally impermissible. One of the ruling’s consequences is that it has made it more difficult for states to defend their same-sex marriage bans in court. In fact, a federal judge last summer struck down California’s gay marriage ban (known as “Proposition 8”), relying heavily on the ruling in Angela’s case.

Wedding Vows: Baehr v. Lewin (1993)
Without a doubt, the question of same-sex marriage is the LGBT rights issue that has received the most attention lately. Genora Dancel and Ninia Baehr, a lesbian couple from Hawaii, helped make the issue of gay marriage part of a national discussion about civil rights. In 1990, after Genora was unable to add Ninia to her health insurance because they were not married, the couple went to the Honolulu marriage bureau office and asked for a marriage license, a request that was immediately denied. At the time, almost no one in the LGBT rights movement thought that gay marriage was a realistic possibility, and as a result, the couple could not get gay rights organizations to help them challenge the state’s refusal to marry them.

But Genora and Ninia (along with four other plaintiffs) were able to persuade a local civil rights attorney to take their case. And that lawyer became the first attorney in the nation to convince a state supreme court that the denial of marriage licenses to same-sex couples raises fundamental constitutional questions of equality and fairness. Genora and Ninia’s legal success ignited a national drive for marriage equality. As a result of that push, more than a dozen states currently provide significant legal recognition to same-sex relationships, and five of those (plus the District of Columbia) recognize same-sex marriages. In addition, while Americans remain divided over whether gay couples should have the opportunity to legally marry, polls show that a clear majority of them support civil unions. All of these changes can be traced to the courageous decision by Genora and Ninia 20 years ago to turn to the courts to gain legal recognition of their committed relationship.

Domestic Bliss: Lawrence v. Texas (2003)
In 1998, after receiving a false report that there was someone with a gun on the premises, deputies from the Harris County sheriff’s office in Houston barged into John Lawrence’s apartment and found him having sex with Tyron Garner. The police arrested the two men and hauled them to jail, charging them with violating a Texas law that criminalized consensual sex between individuals of the same gender.

John and Tyron could have pled guilty to the misdemeanor offense, paid a fine, and gone on with their lives. But instead, with the help of Lambda Legal, they decided to challenge the constitutionality of the sodomy law, taking their case to the United States Supreme Court. The Court eventually ruled that gay people, like straight people, have a constitutional right to make decisions related to sexual intimacy without the fear of punishment by the state.

The ruling in John and Tyron’s case has rendered constitutionally suspect efforts to punish gay people for who and how they love. In fact, this past fall, two federal judges on the West Coast held that the military’s “Don’t Ask, Don’t Tell” policy is unconstitutional, relying largely on the ruling in John and Tyron’s case.

All of these cases have made it possible for LGBT people to become more visible in our society. In many ways, overcoming invisibility is the first step in successfully demanding basic civil rights. Indeed, it is perhaps no coincidence that Invisible Man, Ralph Ellison’s novel about the pain and misery associated with the invisibility of black people in America, was published only two years before the Supreme Court issued its 1954 ruling in Brown v. Board of Education of Topeka. Brown compelled our country to recognize the capabilities and hopes of African Americans. After Brown, African Americans may still have been hated by some and feared by others, but they were no longer invisible.

Similarly, these five lawsuits have rendered LGBT people visible by requiring the nation to grapple with both their existence and their aspirations. As with Brown and African Americans, it is now no longer possible to reject out of hand the claims of LGBT people to basic equality and civil rights. •

Carlos A. Ball, professor of law and the Judge Frederick Lacey Scholar at Rutgers School of Law–Newark, is the author of the book From the Closet to the Courtroom: Five LGBT Rights Lawsuits That Have Changed Our Nation (Beacon Press, 2010).