This book is about the legal battles in the courtrooms around the United States that have been part of the struggle for lesbian and gay rights. As other activists did in earlier civil rights movements, lesbian and gay activists have argued their causes in federal and state courts throughout the nation and, on rare occasion, before the Supreme Court of the United States. The role of the lawyers, the legal arguments they construct, and the fine-tuning of these arguments in response to judicial opinions is a central part of any civil rights movement. Recent academic debate among legal and political science scholars, however, questions whether civil rights litigation victories actually do contribute to positive social change. Some scholars argue that courts do not cause social change and that civil rights movements do not make their biggest gains from litigation. One of the strongest contemporary legal advocates for gay rights, Tom Stoddard, agreed with this assessment, and before his untimely death from AIDS, cautioned us to work harder in the legislative bodies of the country in our fight for lesbian and gay equality.
Whether one believes that courts do in fact cause social change, courts are nonetheless crucial in any battle over equal rights. As Gregory Peck said, playing the role of attorney Atticus Finch in the film version of Harper Lee's To Kill a Mockingbird: "Our courts are the great levelers in this country." 1 What Finch meant, and what Lee tried to demonstrate in her novel, is that courts understand and apply the notion of equality much more readily than legislatures or than members of society in general. Justice Hugo Black made a similar point in a 1940 Supreme Court case, when he said: "Under our constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are non-conforming victims of prejudice and public excitement."2 What civil rights litigators understand is that, even if courts are imperfect as agents of change, they are important arenas for making civil rights claims, for arguing about equality and rights, and for educating legislatures and the broader society about injustices experienced by minorities.