Picking their
court battles

Kevin Cathcart wants every gay and lesbian person to learn the value of patience. We can't get discouraged, he says, just because marriage equality and parental rights for LGBT people are under all-out assault by social conservatives in America. "We are fighting a backlash that is incredibly strong, but it was incredibly strong all along," he says. "A backlash is to some extent a sign of success--that the other side is worried."

Cathcart, who on May 1 of this year marked 14 years as head of the gay rights group Lambda Legal, believes his organization's greatest accomplishment might be that it has helped raise expectations. Gays and lesbians now know what equality and justice look like in a way that could not have been conceptualized 30 years ago. "If anyone looks back over any long-term period and doesn't see we've made incredible strides, they aren't looking back at what I am looking back at," says Cathcart, 52. "I feel the courts have been our community's strongest avenues for progress."

And Lambda Legal has been fighting in those courts for decades. The organization was founded in 1973--when a couple of volunteers set up shop in one room of a friend's New York City apartment--as the nation's first group focused on winning gay rights through the U.S. court system. Now the nonprofit organization has a staff of almost 100 with offices in New York, Los Angeles, Chicago, Atlanta, and Dallas. Its work is focused on litigation--averaging over 50 cases at any given time--but the group also conducts public policy work and educational programs to raise awareness about gay rights issues.

In addition to leading the high-profile fight to overturn the nation's antisodomy laws in 2003, Lambda has taken on the Boy Scouts of America and fought for gay-straight alliances and antiharassment protections for LGBT students. It won the first HIV discrimination case and was instrumental in making the military give gays and lesbians honorable rather than dishonorable discharges when booting them because of their sexual orientation.

Dominick Vetri, a professor at the University of Oregon Law School of Law who specializes in gay rights, says Lambda has been particularly good at selecting cases that go on to establish positive legal precedents. "They've had their losses, but wonderful successes as well," Vetri says. "On balance, if you look at everything over a period of time, they have done magnificent work, provided resources and legal talent that have made it possible to bring forward a lot of cases of discrimination, and have been remarkably successful in winning."

But Vetri takes issue with what he sees as Lambda's failure to seek enough community input on which cases to champion. "I think there needs to be more involvement of the community," he says. "They should be reaching out through focus groups to see concerns rather than looking to the elites. Now that they have become so big and powerful and influential, they should figure out some structure to give the gay and lesbian community more say in the process."

Lambda often does best when it has plaintiffs who are willing to go public with their fight and tell their stories to the media. That's what happened when Matthew Cusick was fired in 2003 by Cirque du Soleil, after the acrobatic performer disclosed that he is HIV-positive. His case drew international attention to HIV discrimination in the workplace.

"It was pretty tough to go through the legal battle, which was very media-driven," says Cusick, 34, who settled with Cirque and is now working as a performer in New York City. "But [Lambda] was willing to go all the way, as far as I needed them to go. I felt like even one person can have a great impact in standing up for what is right."

B. Birgit Koebke and Kendall French, together 14 years, also braved the spotlight in their recent battle against the Bernardo Heights Country Club in San Diego, which had demanded that the domestic partners buy two separate memberships even though married couples didn't have to. After a two-year legal battle, during which they spent most of their life savings, the case was dismissed. So the couple contacted Lambda, whose subsequent litigation resulted in a change to state law so that clubs would have to recognize domestic partnerships. "They were like a knight in shining armor," Koebke says. "It was such a huge thing. When Lambda wins, everyone wins."

New York City residents Daniel Hernandez, 48, and Nevin Cohen, 43, hope that's true. They are the lead plaintiffs in a lawsuit filed by Lambda in March 2004 seeking marriage licenses for five same-sex couples. A trial court ruled in favor of the couples, but New York City appealed the decision and won. Now the case is before the New York court of appeals, the state's highest court, where oral arguments took place May 31. "It's important to get things established in court because our legislators aren't always willing to stick out their necks for the right thing," says Hernandez, a real estate developer. "I put a lot of faith in this legal system."

Same-sex couples have filed similar lawsuits across the country. But Lambda hasn't embraced every case. Andrew Koppelman, author of Same Sex, Different States: When Same-Sex Marriages Cross State Lines, due out in December, says it has been critical to Lambda's efforts to prevent "sure loser" cases from clogging up the court system.

"One of their most important functions is persuading people not to file lawsuits," says Koppelman, a law professor at Northwestern University. "This kind of coordinating function is crucial, because every time you lose one it's another decision on the books that says same-sex marriage doesn't have to be recognized."

Lambda is currently challenging marriage laws in several states. It is awaiting decisions from the New Jersey supreme court and the Washington State supreme court, and is involved in cases in California and Iowa. "This is one of those areas where I believe we need to win in a number of states before we can expect the [U.S.] Supreme Court to change," Cathcart says.

Indeed, after the high court upheld Georgia's antisodomy law in 1986, Lambda and other legal organizations went to state courts and steadily challenged state sodomy laws. By the time the Texas case was heard by the U.S. Supreme Court in 2003, sodomy laws still were on the books in 13 states and Puerto Rico. "They were no longer being asked to change the law in a majority of states; they were asked to do a cleanup operation," Cathcart says. "Civil rights movements are long and can be arduous, and there can be disappointments along the way. This example showed us what can happen if you keep doing the work and have strategy and goals."