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LGBTQ Rights Pioneer Paul Smith Reflects on the 20 Years Since Lawrence v. Texas

June 02, 2023

By John Murph

When it comes to eminent lawyers who’ve fought on behalf of the LGBTQ community, Paul Smith ranks high. Two decades ago, he stood in front of thePaul Smith U.S. Supreme Court and argued on behalf of John Geddes Lawrence in Lawrence v. Texas, which resulted in the landmark decision decriminalizing sex between two consenting, same-gender adults.

Smith started litigating gay rights cases in the 1990s as a partner at Jenner & Block in Washington, D.C., and with the American Psychological Association as a client. “We would file amicus briefs in all the big cases that were coming along involving gay rights, very often cases challenging sodomy laws in state courts. Basically, just sort of telling the courts there is nothing wrong with being gay,” Smith says.

Recognized as one of the country’s leading lawyers in appellate litigation, media and entertainment law, and First Amendment litigation, Smith has argued 21 cases before the Supreme Court covering a wide range of civil rights and civil liberties issues.

Now serving as senior vice president for litigation and strategy at the Campaign Legal Center, Smith shares with the D.C. Bar his reflections on the 20th anniversary of the Lawrence decision, including how the legal profession’s stance toward the LGBTQ community has evolved over the years and the outlook for LGBTQ rights in the country in the face of rising state anti-trans legislation.

How far have we come since Lawrence v. Texas?

I think it is going to be hard for a lot of younger people to even imagine a time when there were still laws that made it a crime for two people of the same sex to have sexual intimacy with each other. But they were in the books until 20 years ago.

Even worse, the Supreme Court had upheld those laws back in the 1980s in Bowers v. Hardwick. It was a major problem for the movement for LGBTQ equality that the Supreme Court said it is okay to criminalize gay sex.

The achievement of [the Lawrence decision] 20 years ago — in which I got to play a very visible role, although I do not take responsibility for it — was an important milestone. It laid the groundwork as well for marriage equality to come. It has been quite an interesting 20 years to watch.

Take us back to how you came to take up this case in 2002.

The [LGBTQ] movement had been working for 17 years to overturn Bowers to get rid of the sodomy laws and the idea that the state was allowed to make it a criminal offense to be gay. [The movement] did that in part by chipping away at lots of states, getting fewer and fewer states to have these laws on the books, but there were still 12 or 13 [states with sodomy laws]. The Lawrence case was filed because they finally got a case that had really good facts. It was a criminal case. Two men were arrested in a private apartment in the middle of the night, accused of having sex.

The LGBTQ movement really pounced on that [criminal case] and litigated it up through the courts of the state of Texas. It was a state criminal prosecution. We only got involved when the case was ready to go to the U.S. Supreme Court. One of my colleagues [at Jenner & Block] got a call from Lambda Legal to ask for some consultation on the issue. One thing led to another. We ended up asking the court with Lambda Legal to take the case and briefing the merits.

Ultimately, what happened was I was the only person on the team who had ever argued a Supreme Court case before. It was quite an opportunity in my legal career to do something that important in such a remarkable case — a case that really felt at the time like we were making history.

Washington, D.C., has sizeable legal and gay communities. What was the legal profession’s response when Lawrence was being litigated?

If you go back to the ’90s, the legal world in D.C. and everywhere else in the country was a little reluctant to be too open about having gay lawyers. By the time we got to Lawrence around 2002 and 2003, the legal culture had changed dramatically. The opportunity to work on that case made it clear to me that a large bulk of firms in the city wanted to be as involved as possible.

One of our strategies in Lawrence was to convince the moderates on the court — Sandra Day O’Connor and Anthony Kennedy — that the establishment was on our side, that LGBTQ equality was perfectly normal and not a very controversial position and was accepted by the establishment. We did that in part by having amicus briefs written by every big firm that we could find in the city. This was not a controversial matter by 2002.

Back in the 1980s, if you look at Bowers v. Hardwick, there is not a single establishment law firm that filed a brief in that case. It was just a different world. The court itself did not seem to have any familiarity with gay people in the 1980s. But by 2003 they had [openly] gay law clerks at the Supreme Court. The media had transformed public perceptions of the issue in very dramatic ways through the ’90s into the early part of the 21st century. We did not find a lot of resistance within the world of law firms to helping. Indeed, there was a great deal of enthusiasm for getting involved by 2003. That has continued ever since. Justice Scalia used to complain in all of his dissents that the legal profession had been captured by the sort of pro-equality forces. It drove him crazy.

What was it like being a gay lawyer in the 1980s when there was so much stigma against being gay, especially during the height of the AIDS epidemic?

I would say that like many people in my generation — I was born in the mid-1950s — coming to terms with being gay was a long, slow, late process. This was not helped by the fact that I was in the top ranks of young lawyers. I was the editor-in-chief of the Law Journal at Yale. I was a Supreme Court law clerk. That is what brought me to Washington.

There was a great deal of pressure not to be openly gay with those kinds of credentials. That, plus all the various psychological factors. The absence of much support for it in the world in those days led me to try very hard for a number of years to resist being a gay person before I finally came to terms with it in the early ’90s [when] I came out. That is a very common fact pattern of people in my generation, I am afraid.

When the Supreme Court overturned Roe v. Wade in 2022, Justice Clarence Thomas issued a concurring opinion that the Court should revisit other substantive due process precedents, such as those related to contraception and same-sex marriage. Do you see real danger ahead?

Justice Kennedy was our stalwart fifth vote in all of the cases from Lawrence all the way through Obergefell v. Hodges. Once he retired in 2018, it was pretty clear that [for] a majority of the justices, if you just asked them [whether] these cases were right or wrong, they would have said they thought they were wrong because most of them had dissented in Obergefell in 2015. And the new ones that were coming on the Supreme Court certainly were no more likely to be supportive of Justice Kennedy’s opinions in those key cases.

On the other hand, I never really thought that it was too likely that the Court would actually reverse course on these issues on either the right to sexual intimacy established in Lawrence or the right to marriage equality established in Obergefell. It feels to me like these are decisions that, given the cultural context and the legal complexities that would be created, they are very unlikely to try to take back. The reaction to Dobbs was very striking. The reaction to overruling Lawrence and Obergefell is almost unimaginable. It would be so powerful.

A lot of anti-trans bills have emerged in the states in the past few years. How would you like to see the legal community help combat them?

It has been extraordinarily disappointing that our political culture has moved so strongly just in the last four or five years to reassert an attitude of homophobia and transphobia that I thought we had transcended. The laws that are being passed targeting trans people are extraordinarily both ignorant and harmful.

I think the legal community has continued to step up. There are people looking for the opportunity to get involved in challenging these laws. I do not think [the leading groups fighting for LGBTQ equality] are having any trouble finding law firms to partner with to challenge these laws. Corporations are also showing a really strong opposition to a lot of this in many states. But [the bills] have become so big, it is hard to push back … if 25 states are passing these laws all at the same time. It is really terrible.

It is a hard issue to address because it is not entirely clear how friendly the Supreme Court is for any new rights. Maybe they are not going to overrule the ones we have, but I do not know if you want to get up there and ask them to do anything too aggressive to protect transgender students, transgender children, and even transgender adults from the kind of harassment they are experiencing. It is tough.

What are your thoughts on the emerging censorship bills and laws seeking to eliminate any discussions about LGBTQ people and history.

First of all, even the conservative Supreme Court is pretty good on the First Amendment. Some of the laws that we have seen passed that ban drag shows when there is somebody under 18 in the room are obviously unconstitutional and would be struck down. It gets a little more complicated when you are talking about telling public school teachers what they can and cannot teach because they work for the state. And the state has control over the curriculum.

[States] can choose textbooks; they can choose what books to have in the school library. I think those First Amendment cases about what can be said in the classroom — at least from the point of view of the teachers — are going to be tough to win.

From the point of view of students, on the other hand, it is very clear [they] have First Amendment rights to talk about whatever they want to talk about in school in almost all contexts. To the extent that [the censorship bills] are trying to prevent people from being out at school and talk about their sexual orientation — that kind of thing as applied to students is going to cause pretty viable First Amendment challenges that some of them are already being filed.