Q: Why did you decide to pursue a career in law?
A: For the same reasons many young people do: to help people and work for fairness and equality.
Q: What did you do after law school?
A: I went to work for Mittel & Heffernan in Portland, Maine, now Mittel, Asen, Hunter & Cary. They were generous about letting me do pro bono work. I signed up with the Volunteer Lawyers Project right away and also started representing people with the Maine Civil Liberties Union. In addition to the work assigned to me, I brought in a certain amount of work because at the time I was one of just a few openly lesbian or gay lawyers. Many gay and lesbian people contacted me about their legal issues in everything from negotiating employment contracts to incorporating businesses to wills and relationship agreements.
Q: In 1990 you left Maine and went to Massachusetts to work at Gay and Lesbian Advocates and Defenders, known as GLAD. What is GLAD?
A: I left Maine to work at GLAD in 1990 because Massachusetts had just become the second state in the country to enact a law making it unlawful to discriminate based on sexual orientation in employment, housing, public accommodations, and credit. GLAD, one of the oldest gay and lesbian organizations in the country, was hiring an attorney to enforce that law and take on other legal work related to sexual orientation issues.
As a general matter, GLAD focuses on litigation and public education in the six New England states, although we sometimes do legal and policy work beyond New England. Our goal is to use litigation and education to achieve equal justice under law for gay, lesbian, bisexual and transgender people, as well as those living with HIV/AIDS.
Q: What is GLAD’s history?
A: We were founded in 1978 by Attorney John Ward to stop harassment of gay people in Boston by the police and Suffolk County (Boston area) District Attorney. GLAD quickly established broader parameters and has been involved in every legal facet of the struggle to achieve equal justice under law without regard to sexual orientation or HIV status. Some of our early cases involved issues that now seem mundane, like getting a permit for the Boston Gay Pride Parade, but others are still with us, such as custody cases and the harms imposed by the denial of marriage rights.
Q: How do you decide which cases to pursue?
A: There are many factors, but the most basic factors are the facts, the law, and timing. As to the facts, we evaluate whether the situation contravenes a bedrock sense of fair play. We believe a standard of fairness is ingrained in most people and also required in the legal system by non-discrimination rules and equal protection principles. The plaintiffs carry an enormous burden because they become the public face of the case and it is their story of unfair treatment that will be front and center in the case.
As to the law, we evaluate the strength of our case within the entire legal landscape because we prefer to argue our case is consistent with existing law and constitutional principles. We consider what will happen if we win as well as what harm might be done if we lose. Many times we refrain from filing a particular case at a particular time because we think neither the courts nor the public is ready for it and do not want to establish a precedent that will stifle progress on that issue for decades to come.
For all of our planning, sometimes our hand is forced. For example, GLAD sued on First Amendment grounds on behalf of students and staff in a New Hampshire school system after the board enacted a policy barring anyone from saying anything positive or neutral about homosexuality. With teachers withdrawing Shakespeare’s Twelfth Night from the classroom and guidance counselors suddenly speechless when working with gay, lesbian, bisexual and transgender students, we felt we had to act to avoid copycat policies elsewhere.
Q: What are the landmark cases you have taken on and won?
A: I don’t think about GLAD’s cases this way. Something small to a lawyer can be a landmark in a person’s life. We focus on law as it affects people’s lives, not just law in the abstract.
Q: Let’s talk about Goodridge v. Department of Public Health. Can you explain what the case was about and its legal history?
A: Seven loving and committed couples from across Massachusetts – most together for decades and most raising young children -- challenged the government’s denial of marriage rights to them. They had all been denied licenses by their city and town clerks. GLAD sued on their behalf on state constitutional grounds (liberty and equality theories) in April 2001. On cross-motions for summary judgment, a trial court upheld the denial of licenses in May 2002 on the grounds that marriage is for the purpose of procreation. The judge conceded that gay people procreate, but noted that it is more “cumbersome.” The Supreme Judicial Court of Massachusetts reversed on November 18, 2003 in a 4-3 decision authored by Chief Justice Margaret Marshall finding there was no rational basis for the marriage ban.
Q: Were there other state or federal court decisions or statutes that helped lay the legal groundwork for Goodridge?
A: There is a rich body of law federally and in Massachusetts supporting equal treatment under law and ensuring that all people have the right to make important personal choices, like the choice of whether and whom to marry. The briefing in this case is extensive and is available at www.glad.org. Most importantly, the Massachusetts Constitution contains strong liberty and equality protections and the Massachusetts Supreme Judicial Court has taken those principles seriously over the years. As just one example, even with no express abolition of slavery in the State Constitution, the Courts construed the “free and equal” language in the Declaration of Rights to abolish slavery long before the Civil War.
The case of Baker v. State of Vermont, 744 A.2d 864 (Vt.1999), was an enormously important milestone because it, too, was based on a strong state constitution and upheld an equality principle. While I thought the Court stopped short of where it should have, i.e., it should have ordered the issuance of marriage licenses to our three plaintiff couples, it did at least go so far as to declare that the state-based rights and protection of marriage could no longer be denied to same-sex couples. (GLAD was counsel in Baker along with two Vermont lawyers, Beth Robinson and Susan Murray of Langrock, Sperry & Wool).
After oral argument in Goodridge, there were other important developments, too, including the Supreme Court’s striking down all sodomy laws nationwide in Lawrence v. Texas, effectively saying that gay people have the right to their private lives, and the opening up of marriage by several Canadian Courts of Appeal.
Q: Did you expect the Massachusetts Supreme Judicial Court to rule in your favor?
A: I thought we would get a fair hearing in Massachusetts, both from the Court and from the court of public opinion. That’s all any lawyer can ask for.
Q: Would you argue that the decision in Goodridge helps to strengthen the family unit? How so?
A: For couples who marry, there is no doubt that their family relationships are more secure and protected with marriage than without it. Marriage allows people to formalize their love and commitment and take on legal responsibility for one another and their children. Marriage is also a gateway to an enormous architecture of rights and protections for couples and their children – or as the Supreme Judicial Court stated, rights touching on nearly every area of life and death. There are hundreds of rights for married couples under state law, and at least 1138 at the federal level. For our clients Linda Davies and Gloria Bailey, now together 33 years, it means they can hope for an economically secure old age and share retirement savings without fearing that all assets will be taxed as income to the survivor.
Q: What has been the general reaction to Goodridge?
A: As in any civil rights struggle, it is mixed and dynamic. Some see Goodridge as a beacon of hope, fairness and equality. Those who have already been busy denying rights to same-sex families have escalated their efforts. Before Goodridge was decided, there were 37 state laws denying marriage to same-sex couples as well as a proposed federal constitutional amendment denying marriage, civil unions and other rights associated with marriage.
The exit polls from the November 2004 Presidential race give us a snapshot of where people are right now. About 27% support marriage, another 27% oppose any legal recognition of same-sex relationships, and 35% support civil unions. That means 62% of Americans want to end the status quo where same-sex couples are automatically denied rights – no matter how committed and responsible they are. Over the next number of years, people will keep grappling with the fairness issues and many will come to conclude that denying marriage to same-sex couples does nothing to protect their own marriages, but simply hurts their neighbors’ families.
Despite the association of marriage and religion in the popular mind, I hope even more people will come to see that their faith faces no threat since every religion remains free to decide who to marry and on what terms – no matter what the government does.
Q: Have attorneys in other states begun filing similar lawsuits to get same sex marriages recognized?
A: There is a robust discussion across the country about the existence of same-sex families and their children and how they should be treated by the government. Courts cases are certainly part of that, but so are state legislatures. Vermont, California, New Jersey and Hawaii have all passed significant legislation. Maine has a domestic partner registry with a few rights available for registered couples. Some states, such as Connecticut, New York, and Rhode Island, have been considering bills to end marriage discrimination against same-sex couples for years.
Others are passing constitutional amendments to ban marriage and any protections for same-sex couples. But at the 30,000 foot view, to paraphrase Justice Ginsburg, what is happening is what often happens with constitutional rights in America: we are wrestling with the question of whether to extend our basic principles of fairness and equality to another group of citizens who were previously ignored or excluded by society. It may take time, but we come out in favor of inclusion and equality each time.
Q: Vermont recognized civil unions of same sex couples. What is the legal distinction between a civil union and marriage?
A: Civil unions exist in one state: Vermont. We don’t think they are equal because, unlike marriage, the protections for couples in civil unions stop at the state line. We don’t think they’re equal because couples in civil union have no claim to the 1,138 rights and protections available to married couples under federal law. We don’t think they’re equal because marriage is clearly and powerfully understood as the ultimate marker of a family, and that word brings social protections to the couple and their children. Hillary and Julie Goodridge decided to fight for marriage when their then-five-year-old daughter questioned whether they really loved one another since they weren’t married.
The word matters: I have yet to meet a married person who would trade in his or her marriage license for a civil union certificate. As the Supreme Judicial Court addressed this most eloquently in a follow-up opinion after Goodridge: The history of our country has shown that separate is seldom, if ever, equal. See, Opinions of the Justices, 802 N.E.2d 565 (Mass. 2004).
Q: Do you foresee the US Supreme Court weighing in on the issue of same sex marriage?
A: As the final arbiter in our federal system, I expect the United States Supreme Court will weigh in at some point. In 1948, California’s Supreme Court ruled that marriage bans based on race were unconstitutional. There were 30 such laws or constitutional provisions in the states at that time, and 90% of the American public supported those laws. But California led the way, and some states started repealing or invalidating their bans. Nineteen years later, in Loving v. Virginia, 388 U.S. 1 (1967), the United States Supreme Court invalidated the remaining bans holding that the right to marry is a fundamental part of what it means to be a free person.
Q: The New York Times has compared Goodridge to Brown v. Board of Education as a milestone in the area of civil rights. What are your thoughts?
A: I don’t like to compare. Goodridge is a milestone in its own right. I like to think of it as the end of the beginning of the quest for equality of gay people. And Brown was obviously enormous in the history of our country and the quest for equality under the law. At the same time, there are significant and obvious differences between the civil rights struggles for equality in the African-American community and for equality in the gay, lesbian, bisexual and transgender communities. But there are also important similarities –enormous opposition from religious forces, fears for children, fears of unnatural marriages and a slippery slope, and the resistance to claims of equal treatment by the government. There is an excellent synthesis of this in George Chauncey’s Why Marriage? (Basic Books, 2004).
Q: What future issues do you wish to tackle?
A: In nearly every state, there are still chasms between the law as applied to gay people and the law applied to everyone else. It is still legal in 36 states to fire a person from his or her job solely because of his or her sexual orientation. There are states where you can lose custody of your child because you are gay or lesbian. In most states, a couple who have been together for 50 years can be treated as legal strangers because there is no means to recognize their family relationship. There is a long list and many years of work to establish formal equality under law.