Courts of Law and Courts of Public Opinion

When George W. Bush was inaugurated president in 2001 and opponents of equality for LGBT people completed their take-over of the federal government, many in our community turned their eyes to the courts as the most promising place to make serious strides toward equality. The courts were a sensible place to look. Even during better political times, the courts more often than not have been where we’ve made our most dramatic progress.

For example, in the 1990s the U.S. Supreme Court delivered an important legal and political victory to the LGBT community by overturning an extremist anti-gay constitutional amendment enacted by Colorado’s voters. We also took big steps forward in the courts on behalf of lesbian and gay parents and LGBT students, won significant legal protections for same-sex couples in some parts of the country, and were even able to strike down anti-gay sodomy laws through court action in conservative states like Montana, Kentucky, Tennessee, and Georgia.

In a variety of ways, the courts have continued to deliver in the five years since Bush took office. Most notably, in 2003 the U.S. Supreme Court reversed its notoriously anti-gay ruling in Bowers v. Hardwick—the 1986 Georgia sodomy case—thereby eliminating all remaining sodomy laws in the country. The Massachusetts high court declared that same-sex couples have a constitutional right to marry in that state, pushing open a critical door in our collective fight for equality.

Courts in not-so-friendly states including Louisiana, Alaska, and Montana—again!—have delivered important victories for some couples in domestic partnerships. And Lambda Legal and other LGBT rights organizations repeatedly have been able to use the threat or reality of court action to pressure everything from recalcitrant employers to conservative school districts to do what’s right.

Yet while we’ve made lots of progress in the courts in recent years, we’re also confronting serious challenges. Those opposed to LGBT equality have become better and better at whipping up political backlash to reverse or prevent courtroom victories, especially when it comes to marriage.

This isn’t entirely new—some may remember how a near legal victory for marriage equality in Hawaii was snatched away by voters in the mid-1990s. But it’s become much more rampant. Eighteen states now have constitutional amendments that make it impossible for same-sex couples to win the right to marry through state courts, and more states will likely follow suit during next November’s elections. And increasingly we see our opponents succeeding with their message that voters and politicians, rather than the courts, should decide whether we have rights, at least when the right to marry is at stake.

At the federal level, we’ve seen the Bush administration use the past five years to systematically stack the federal courts with extremely conservative judges who aren’t likely to be anywhere near as open to our legal arguments as the judges they replaced. Sandra Day O’Connor’s replacement by the decidedly more conservative Samuel Alito is only the most dramatic example of the challenge we face. While we still have the five-vote majority that overturned sodomy laws in 2003, one of those five votes is 85 year-old Justice John Paul Stevens.

None of this means that we should despair as we look to the future. At Lambda Legal, we’re convinced that we will continue to win important courtroom victories for our community and that the courts will still be where a lot of the important action is. But as we move forward, we’re going to have to think and act differently when we’re fighting in the courts on contentious issues like marriage and adoption. More and more, we’ll be integrating our courtroom strategies with public education efforts to win hearts and minds. It’s become clear that we can’t feel secure in our victories if we win by pushing the courts too far out in front of public opinion.

That doesn’t mean we slow down in the courts. Instead, we must dramatically expand our efforts to win over the American people. Now more than ever, the battlefield is the court of public opinion as much as it is the court of law.

We’ve taken that lesson to heart with Lambda Legal’s lawsuit on behalf of same-sex couples seeking to marry in New Jersey. When we filed that lawsuit four years ago, we knew that we were in a campaign in the true sense of the word. That’s why we hired a top-notch political organizer who engineered an unprecedented public education campaign to accompany the lawsuit. Thanks to those efforts, over the past several years thousands have attended high-profile town hall meetings on marriage equality, newspapers all across New Jersey have editorialized in our favor, and the most recent public opinion poll shows that a full 56 percent of the state’s voters support marriage for same-sex couples!

If we can win the lawsuit––which was argued at the state’s high court in mid-February––we’re confident we can withstand the political backlash.

Aside from swaying public opinion, we’ll have to continually re-think our legal battlefields. As the federal courts become more and more conservative, we’re likely to place increased emphasis on litigation in state courts. Of course, winning one state at a time takes more time and resources. And our lawsuits need to be accompanied by continuing efforts to build our community’s political strength at the grassroots.

Fortunately, state courts are where many of the issues most important to our community––marriage and domestic partnership protections, parenting rights, workplace fairness––get decided in the first instance. And there are already signs that with time we’re getting better at playing politics and winning at the local level.

An increased emphasis on state legal challenges doesn’t mean we should give up on the federal courts. We’re confident we can still win––even at the U.S. Supreme Court––if we’re selective and smart about the lawsuits we choose to advance. Sometimes that will mean holding off today so we can win tomorrow. Other times it will mean pushing forward, but with legal strategies that can line up a Supreme Court majority with pin-point accuracy.

So as we move forward through 2006 and beyond, our eyes should still be on the courts––of law and of public opinion. There’s no doubt that we’ll suffer some setbacks. But if we play our cards right we’ll win much more than we’ll lose as we continue to push forward to equality.

Michael Adams is director of education & public affairs at Lambda Legal, a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgendered people and those with HIV through impact litigation, education, and public policy work.

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