Lambda Law

Students Association


885 Centre Street, Newton, MA 02458

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- Massachusetts Lesbian & Gay Bar Association

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- National Lesbian & Gay Law Association

- Servicemembers Legal Defense Network




APRIL 14, 2005


It’s very humbling to speak to you all tonight – it’s truly an undue honor – and it’s made all the more daunting following an introduction like that, from a person like Kent [Greenfield], who has done so much in his own right for the BCLS community.


I’d be remiss if I didn’t at the outset acknowledge the many in this room, and those scattered all over the nation, who, for decades, have generously invested their creativity, passion, and commitment into this organization so that we, our allies, and the entire BC Law community, might reach a higher calling.


As a mini report from the front lines, right now, the forward momentum of the Solomon litigation is a beacon amidst conflicting marriage equality court decisions, cowering political leaders, and crushing losses at ballot boxes all over the country. It’s no surprise to me – but is a big point of pride – that that positive momentum generated out of this community.


So, I’m really excited to be here. I really want to thank the Lambda executive board for extending me the invitation to speak. This is exactly the kind of moment we dreamt about all the time as students – the day when we’d be able to come back as alumni and say what we really think. And I will.


I want to begin by saying that everything I know about queer activism I learned at BC Law. Put that in your admissions brochure.


The Solomon “crisis” taught me so many things. How to spot a teachable moment. How to lobby allies and build coalition partners. How to read the law – TO read the law. How to deflect specious arguments and cheap shots. How to speak truth to power, while respecting its authority. It gave me faith that people are good and fair and can be reached – faith I’ve called upon many times since—and proof that it really is the small groups that do the big things.


I had the pleasure of meeting Rep. John Lewis at the ABA’s annual meeting last summer, where he was receiving an Allies for Justice Award from the National Lesbian and Gay Law Association for his leadership role in the Black civil rights movement and his recent leadership on same-sex marriage. He accepted the award making two points that I think are useful here: 1) he told a room full of lawyers that he didn’t know why he was getting an award when, in his view, lawyers are the ones who’ve achieved all the civil rights gains; and 2) he said we’re in the middle of a nonviolent revolution and to “keep the faith” and “pray with our feet” on our march to LGBT equality.


Both of these points resonate with me when I think about how Solomon has unfolded. When the issue first hit the ground in 1998 – when I was a 1L – we held the responsibility of our chosen profession in such high esteem. We looked upon those training us with such lofty expectations. We were outraged when we thought that folks hadn’t spotted the issue, didn’t get the injustice, and didn’t feel compelled to dedicate all of their creative lawyering skills to finding a just solution. There were times when we felt like we were banging our heads against the wall – and I know folks have felt that many times since. It really was an act of faith on the part of so many people on so many levels to move the Solomon issue to the level of national discussion it enjoys today.


And, it’s such a delight to see the creative lawyering that came out of it. Who would have imagined that in the name of social justice for LGBT people, a professor of corporate law would create a corporation for the sole purpose of empowering law schools to do what they could not or would not do by themselves? It’s exactly what we all had faith people of courage and conviction at BC Law were capable of, and it’s exactly what John Lewis was saying is the unique contribution of lawyers in civil rights struggles – not only believing in the end, but finding the means to reach it.


Now that the “teachable moment” that was Solomon has reached a plateau, the challenge in front of us is to figure out where to go next and how to get there. Before I speak to that, a few things need to be said about the national context we’re operating in.


First, enough of the BS charge that LGBT people cost Kerry the election or won it for Bush. It’s a homophobic and transphobic lie, exposed by every shred of empirical evidence generated after the election. Period.


Second, let’s be honest and acknowledge that – as with all civil rights movements – the litigation strategy behind the push for marriage equality is light years ahead of our political and public education work. But, be that as it may, couples and families facing terrible injustices sought redress by going to court and asserting their constitutional rights. This is the way we know, particularly as lawyers, Americans are supposed to do things.


And the pious response from opponents to justice for LGBT people? – This is an attack on Christianity, Western Civilization, and the fabric of our society, and we must crush it.


I don’t you know about you, but I am tired of having moral values defined for us by those that would, for example, deny us the right to marry while at the same time discriminating against us for being “incapable of commitment.” We know what moral values are:


Access to healthcare for all. That’s a moral issue.


Affordable housing. That’s a moral issue.


Teaching our youth how to protect themselves from disease with comprehensive sex ed – the only programs proven to work. That’s a moral issue.


Sending our lesbian, gay, bisexual and transgender soldiers to war while denying them freedom at home. That’s a moral issue.


Providing legal, financial and emotional security to all of our families that need it is a moral issue.


Putting minority rights up to a majority vote is a moral issue.


In the name of “traditional values,” those seeking to crush LGBT people into oblivion seek to destroy many of the things many of us in the room hold dear – choice for women, affirmative action, basic human rights for immigrants, racial and economic justice, separation of church and state . . . checks and balances.


As Urvashi Vaid has been saying for decades – pull the hoods off the leaders opposing us and we see far more than opposition to same-sex marriage. We see a legislative push for covenant marriages – a rollback of no-fault divorce laws. We see conscious objector bills – allowing doctors to not treat patients, and pharmacists to not dispense medication, on grounds of a “moral objection” – which means compromised access to prescription contraception or drugs to treat HIV, and uncertain access to health care for all LGBT people. Anti-gay adoption bills. Opposition to reauthorizing the Civil Rights Act, the Fair Housing Act, the Voting Rights Act and the Violence Against Women Act.


We see those who insisted before the election that the broad state constitutional amendments they were sponsoring would “only ban marriage,” now using them not only to strip gay AND straight couples of health benefits, but to gut the application of domestic violence laws to all unmarried couples.


If the state’s interference with Terry Schiavo’s valid, heterosexual marriage is not a wake up call that marriage alone with not protect LGBT people from the scope of those working to obliterate us, then let’s be absolutely clear:


This is not just about marriage. Not for them, and I would humbly submit, therefore, not for our people, either. This is about individual autonomy and self-actualization. It’s about the cheesiest, deepest and most traditional of American values – life, liberty and the pursuit of happiness. Autonomy of the body, spirit, mind and faith. We must call upon our each other to rise up and respond to the attacks against our people with that breadth. This land is our land, too.


As lawyers, we have a unique role to play in all this. I’m not talking about representing our LGBT brothers and sisters in court. I’m talking about speaking out against “activist judges” rhetoric and court-stripping legislation, which are cultivating a climate of total disrespect for our profession and for the judicial system, a climate in which extremists feel called upon to murder our federal judges and their families.


We know that civil rights gains are often made first in the courts and we know that that is what this is all about. If the connection between crushing LGBT people and eroding our system of checks and balances isn’t totally clear, then consider that the most recently introduced version of the Federal Marriage Amendment not only bans any form of relationship recognition outside of one-man/one-woman marriage, but it also strips all courts of the jurisdiction to entertain challenges to that ban.


This just isn’t how America does things. Our courts and our profession are under direct attack. As lawyers we must make it our business to spot this issue and respond.


Whether marriage is our movement’s issue of choice or not, like Solomon, the national discussion about marriage has created an important “teachable moment” – a context for real discussion about our families and our lives that can move us forward – or roll us back – on many of the moral issues we hold most dear. When else in American history have LGBT people been able to go door-to-door in places like Mississippi , Oklahoma or Georgia to talk on people’s porches about why discrimination against LGBT people is wrong? And people are being reached.


Against the backdrop of this national discussion, the challenge for BC is to figure out how to sustain the “teachable moment” about LGBT people absent the Solomon urgency. A few ideas come to mind.


One. Now that categories protected by BC Law’s nondiscrimination policy are less in question, let’s flesh out what having that nondiscrimination policy means. If the career services office requires employers to certify that they don’t discriminate on the basis of sexual orientation, race, gender, etc., should it also survey employers to see what this translates into?


For example, who that “doesn’t discriminate” on the basis of sexual orientation actually offers domestic partner health benefits? What firms that have hired a meaningful number of females and African-Americans have promoted a meaningful number of them to partner?


In 34 states it is still legal to fire someone because they are gay, and in 44 states it is legal to fire them because they are transgender. For firms recruiting from these states, an LGBT applicant could lose the chance of being hired – or later be fired – for even asking if domestic partnership benefits are available. If nondiscrimination is the goal, then perhaps the career services office should consider protecting LGBT law students from discrimination by asking these questions for them.


Two. Why, in 2005, when LGBT issues are at the forefront of national political debate, doesn’t BC Law offer a class on LGBT legal issues? I’m not talking about privacy law and tiers of scrutiny and trust and estates and other broad issues of law where willing and responsible professors can weave in a couple of LGBT-specific cases to flag the unique issues.


I’m talking about the complex patchwork of state nondiscrimination laws and religious exemptions. Domestic partnership benefits and federal preemption of state insurance laws. The havoc sex-segregated facilities, such as bathrooms, homeless shelters, domestic violence safe houses and prisons, reap in the already complicated lives of transgender people. Vague and grossly broad state constitutional amendments and their interplay with everything from criminal laws addressing domestic violence to the use of the word “partner” in the wills of same-sex couples. The interplay of federal and state tax laws when states recognize marriages that the federal government does not.


Speaking from experience, this is not the kind of stuff you want to learn on the job. As LGBT legal issues become more complicated, this community should renew its commitment to affording students the opportunity to graduate with some level of competence around these issues, particularly for LGBT students, who will be most intimately impacted by ignorance.


Three. Let’s start educating about the need to expand the nondiscrimination policy to include folks who are not currently protected. Host a panel, or a town hall meeting, about the serious difficulties some transgender people have even using a bathroom safely in places not sensitized to the existence, let alone needs, of transgender people. This is not a radical concept – I get told I’m in the wrong bathroom all the time.


Work with the undergrad to lobby and educate – like we all did here with Solomon – about why inclusion of sexual orientation in a school nondiscrimination policy is necessary and beneficial.


You know, I’ve heard some fascinating justifications recently for why sexual orientation should not be added to the undergraduate policy. My personal favorite is the fear that “sexual orientation” allegedly has no clear meaning, such that the University might open itself up to lawsuits by people of “orientations” that prefer one-night stands or sex at an early age.


As law students, we know that decades of court decisions have defined – without particular struggle – the meaning of sexual orientation AND that any the scope of any term in any policy can be limited within the policy itself. Help your peers cut through these cheap attempts to resurrect old, tired stereotypes that LGBT people are promiscuous, incapable of monogamy and, therefore, unworthy of protection from discrimination. Let’s help them spot the issue the way we’ve asked others here to do for us.


Finally, let’s embrace the acts of courage we all engage in each day as part of living LGBT lives. It’s not necessary to be working for an advocacy organization – or even on an advocacy issue – to be working directly for the cause.


Being in a committed relationship – or marrying – while the forces that oppose us try to convince America we are incapable of commitment . . . That is a revolutionary act. Choosing not to marry while the forces that oppose us try to convince America that anything other than love inside marriage is unworthy of respect . . . That is a revolutionary act. Having and raising children. Coming out in 100 different situations each day. Reporting a hate crime. Correcting an anti-gay slur. Using the right bathroom even when you’re told you’re in the wrong place. These are revolutionary acts.


It’s been only 5 years since the Vermont legislature created civil unions for same-sex couples. It’s been only 2 years since the U.S. Supreme Court struck down sodomy laws, and only 1 year since the Massachusetts SJC ruling granted us marriage.


Since then, courts in New York, New Jersey, California and Washington state have ruled in favor of marriage equality; The California Assembly has created civil unions and is moving marriage legislation forward; The Connecticut and Oregon legislatures are moving civil unions legislation forward; Maine, Illinois and Maryland have passed transgender-inclusive statewide nondiscrimination laws – all since January; Maryland has passed a medical decision making act; 83% of people recently polled in New York are now in favor of extending marital benefits to same-sex couples; And the 3rd Circuit has ruled that law schools cannot be forced to allow the military to recruit on their campuses in violation of school nondiscrimination policies.


This is warp speed for a civil rights march.


At this extraordinary moment in time, both nationally, and here at BC Law, it is an honor to share a legacy with you all – trusting our moral compasses; spotting the issue; keeping the faith; and praying with our feet.