From Sex to Marriage: The Teleconference

Listen to a teleconference about the importance of Lambda Legal's landmark victory in Lawrence v. Texas on the 10th anniversary of the Supreme Court's historic decision, and its impact on the marriage cases currently before the Court. (A complete transcript is below.)

Participants: Jon W. Davidson, Legal Director at Lambda Legal; Ruth Harlow, former Legal Director; Hector Vargas, former Regional Director at Lambda Legal's Southern Regional Office; Susan Sommer, Lambda Legal's Director of Constitutional Litigation; Paul Smith, who argued Lawrence before the Supreme Court, and Mitchell Katine, the lawyer who received the phone call that set the case in motion.

Transcript

Operator:  Good day, ladies and gentlemen and welcome to the Lambda Legal’s media teleconference from Lawrence to DOMA and Prop 8.  All lines have been placed on listen only mode and the floor will be open for questions and comments following the presentation.  If you should require assistance throughout the conference, please press star-zero.

At this time it is my pleasure to turn the floor over to your host, Leslie Gabel-Brett.  Ma’am, the floor is yours.

Leslie Gabel-Brett:  Thank you very much.  And good afternoon everybody and welcome to this Lambda Legal media briefing about our upcoming blog symposium title from sex to marriage, how we got from Lawrence v. Texas to the cases challenging DOMA and Prop 8.  We have been thinking of this as a Lambda Legal Lawrence team reunion but not just for the purpose of remembering a great victory but more because the folks on this call are among the greatest litigators and strategists in the LGBT movement and we want to hear and share their thinking about the very important cases pending now before the Supreme Court.

As we all know, one historic victory leads to another so we have invited these folks to look forward together into the future.  Before we introduce the speakers, let me quickly explain how this call will work.  I will ask each speaker to briefly introduce him or herself and then I will begin with some questions.  If you would like to ask a question, the operator will give us instructions when we get there but we’ll be hitting star-one and you will be placed in a queue for live questions.

We will try to get to as many live questions as we can but if we don’t get to your question this afternoon, please do not hesitate to contact our communications director Lisa Hardaway.  Her name and information is on the media advisory that you received and she’ll be happy to follow up with you.  Another note, there will be a recording of this call and we will make the audio file available on our website.

Next week we’ll begin to roll out the blog series posting commentaries from each of these speakers and a few other experts over the course of the two weeks leading up to the arguing at the Supreme Court so we hope you will check out our website regularly to read these posts.  And as we discuss Lawrence v. Texas, you may want to hear about the case from John Lawrence’s own words and we were fortunate to film an excellent documentary called Overruled before John Lawrence passed away and you can find that video documentary on our website as well if you click through to the Lawrence v. Texas case page.

So with that, let’s get started.  I want to start by thanking all the speakers for being on this call today and for taking the time to share your thoughts with us.  So as I call your name, I’ll go through the roll here, please introduce yourself and explain the role you played in the Lawrence v. Texas case.  After we do that quick round of introductions I will start with some other questions.  So let me start with our legal director, Jon Davidson.

JON DAVIDSON:  Hello everyone.  I am – was privileged to be a small part of the team that worked directly on our brief in the Lawrence case and also assisted with some of the friend of the court briefs that were filed on the case.  And, Leslie, (we didn’t get – just introduce) everyone first?

GABEL-BRETT:  Yes.  We’re going to do some introductions and then I’ll go back to the questions, OK?

DAVIDSON:  Sure.

GABEL-BRETT:  OK.  Next, Paul Smith.

PAUL SMITH:  Hi.  I’m Paul Smith.  I’m with a law firm Jenner & Block in Washington, D.C. and our firm was co-counsel with Lambda Legal on the Lawrence case in the Supreme Court phase and I was (promoted) to do the oral argument.

GABEL-BRETT:  Thanks, Paul.  Ruth Harlow.

RUTH HARLOW:  Hi everyone.  I’m now a partner at Pepper Hamilton and at the time of Lawrence I was the legal director of Lambda and privileged to be lead counsel for the team and work heavily on the briefing and the strategizing behind the case all the way up from the lowest courts in Texas.

GABEL-BRETT:  Thanks, Ruth.  And Mitchell Katine.

MITCHELL KATINE:  Hi.  This is Mitchell Katine and I’m in Houston, Texas and I was Lambda Legal’s local counsel, the local counsel for John Lawrence and Tyron Garner from their arrest all the way through the Supreme Court.

GABEL-BRETT:  Thanks, Mitchell.  And Hector Vargas.

HECTOR VARGAS:  Hi everybody.  Thanks for joining the call.  My name is Hector Vargas and I’m currently the executive director of GLEMA, health professionals advancing LGBT equality.  And at the time of Lawrence I was Lambda Legal southern regional director and helped lead and develop our public education efforts and strategy around the case.

GABEL-BRETT:  Thanks, Hector.  And our final speaker on the list, Susan Sommer.

SUSAN SOMMER:  I am now director of Constitutional Litigation here at Lambda Legal.  At the time of Lawrence my title was supervising attorney and my main role in the Lawrence case was to coordinate the Amicus Brief in support of our case.

GABEL-BRETT:  Great.  Thanks and welcome again to everybody.  So as I said, I’m going to start by posing a few big questions to our panelists and then we’ll start to take some questions live on the phone as they cue up.  So back to Jon Davidson, if I can start with you Jon - can you talk some about what has Lawrence (meant to our pursuit of equality issue) this past decade and how you feel it sets the stage for the DOMA and (Perry) cases before the court now?

DAVIDSON:  Well, I think it’s difficult to overstate the importance of the Lawrence case to the LGBT movement’s advances over the last 10 years.  To use one metaphor, it’s been I think a central pillar to the foundation on which all of our progress has been built.  The Lawrence decision has been cited by courts nearly 700 times over the last decade and it’s been discussed in almost 5000 law review articles.  The judicial victories we’ve won in this period, using a different metaphor, have rested upon Lawrence’s shoulders again and again and again.

As one example, in the cases challenge and the constitutionality of the former Don’t Ask, Don’t Tell military policy which ultimately helped bring it down in congress, those cases rested very heavily on Lawrence, but First Circuit noted in the Gill case that Lawrence has reinvigorated the debate over the (act’s) constitutionality and the Ninth Circuit, the Witt case relied on Lawrence to set forth a test of heightened scrutiny of a more close examination whenever the government attempts to intrude upon the personal and private lives of gay people in a manner that implicates the rights identified in Lawrence, a test that the federal district court in that case subsequently concluded that the Don’t Ask, Don’t Tell policy couldn’t meet.

I think that the biggest impacts of Lawrence have transcended the courts’ reliance on it.  Lawrence shifted the public perception of gay people from being criminals to being individuals in intimate caring relationships, or at least wanting to be.  It led to a new generation of young people no longer growing up thinking of themselves and being thought off by others as lawbreakers but instead as part of the nation’s (policy) whom its constitution protects.

And with our victory in Lawrence, legal and political resources were freed up from trying to dismantle remaining sodomy laws and could be redirected to other causes including citing workplace discrimination, unfair parenting laws, student’s rights, transgender right, health care issues and of course protections for same sex couples.  And as you’ll, I think, be hearing, you know, in state courts Lawrence was relied upon by the high courts of Massachusetts, California, Connecticut and Iowa in their decisions concluding that same sex couples must be allowed to marry in those states and it has been relied on again and again in the challenges to the so called the sense of marriage act and most notably in the (Perry) case, the challenge to Prop 8.

The Ninth Circuit concluded that Prop 8 was unconstitutional because among other reasons according from the decision, just as the criminalization of homosexual conduct is an invitation to subject gay people to discrimination in the public and private spheres, and that’s a quote from Lawrence, so too does the elimination of the right to use the official designation of marriage for the relationships of committed same sex couples send the message that gays and lesbians are of lesser worth as a class.

So Lawrence has paved the way.  It freed us up.  It redirected our attentions and it changed the understanding of who gay people are which is what has led to our (progress).

GABEL-BRETT:  Thanks so much, Jon.  And you know, in the setup, I, you know, (in a sense) neglected to say that one of the reasons we’re celebrating Lawrence right now is that (we’re at) its 10th anniversary and so almost through the day the arguments in Prop 8 and DOMA cases will take place 10 years after the arguments were made in Lawrence and of course we expect the decision to come almost 10 years through the day as well.

Paul Smith, if I could turn to you and ask you to talk about the connection between the Lawrence (decision) and the issue of scrutiny that is now one of the biggest issues pending in the Supreme Court (cases).

SMITH:  Sure, Leslie.  Let me just first say what the scrutiny issue is and in constitutional law when you talk about discrimination there are certain kinds of discrimination that the law favors heavily.  There’s a strong presumption against that being allowed - racial discrimination, gender discrimination, et cetera - and a major issue in the current cases in the Supreme Court is whether we’re finally getting to get to the point where that same strong presumption applies to discrimination based on sexual orientation, an argument that until recently was not being accepted by very many courts and indeed the movement was reluctant to make because achieving heightened scrutiny 10 years ago (would have meant) that marriage tended to be in this area across the country and military would have had to be integrated sooner and that was something more than the courts were willing to so we didn’t really even argue for it in Lawrence v. Texas.

On the other hand, what Lawrence v. Texas did was lay again, as Jon suggested, the foundation for the progress that has happened since and in particular the progress on what we think and hope will be the achievement of heightened scrutiny for sexual orientation in the Supreme Court cases this year.  (It is) an achievement which has been, by the way, very strongly aided by the fact that the Obama administration has announced its position that heightened scrutiny (applies).  And how did Lawrence do that?

Well, first of all it got rid of Bowers v. Hardwick case that was overruled and Lawrence (like case had said) there’s nothing constitutionally problematic about putting people in jail simply for engaging in gay sexuality.  Once that – as long as that law was in place you certainly couldn’t have a presumption against discrimination based in sexual orientation.  I think Bowers basically endorsed such discrimination as a good thing.  And you had to do more than just (get rid) of that case.  You had to, I think, (recast) the whole history of legal oppression of gay people that existed up until the time of Lawrence - the bar raids and the sodomy laws and the whole (arrest) is not a product of a legitimate moral (choice) by a government to try to suppress homosexuality but a product of ignorance and animus and prejudice all intended to suppress (disfavored) minority.

Once you have that message sent in Lawrence v. Texas then you have a very strong foundation (for saying) this is a category that ought to be subject to heightened scrutiny when there’s (governmental) discrimination.  Indeed the history of prejudice is a central pillar of the analysis (deciding) whether or not heightened scrutiny applies but there should be a strong presumption against allowing the government to discriminate on this basis.  So the argument has been there since Lawrence and has gradually gotten to the point now where we may very well find ourselves in June with the Supreme Court saying any kind of discrimination against gay people.  It is strongly presumed to be unconstitutional.

GABEL-BRETT:  Thanks, Paul.  I’m going to pose a question to Ruth Harlow and after the conclusion of that answer I think we’ll start to open the phone lines and see how many questions cue up and we can go back and forth between the journalists’ questions and some of the questions I have intended to ask.  So Ruth Harlow, may I ask you, talk about how sodomy laws (were) a barrier to progress and (equality) beyond the fact of sodomy itself, but in general how did we understand that at the time when we brought Lawrence?

HARLOW:  Well, in the late ‘80s and ‘90s up until Lawrence was in the courts, we had sodomy laws in the books in over a dozen states and of course it wasn’t just that the sodomy laws were on the books but it was that the US Supreme Court in Bowers v. Hardwick had endorsed those sodomy laws said that any constitutional claim against their existence and their enforcement was essentially (fictitious) and endorsed the idea that gay people could be painted with this broad brush of second class citizenship, criminality, immorality - those kinds of notions.

So every time Lambda’s lawyers went into court all across the country whether it was for a parenting issue, an employment issue, even a free speech issue, Bowers v. Hardwick and the sodomy laws were raised as a justification for treating gay people differently.  And so we knew that until we got rid of that cloud hanging over us, we would never go into court on a fair playing field.  So we shipped away certainly at discrimination in parenting, discrimination in employment and all kinds of other areas but until we could get rid of the cloud that was created by sodomy laws and Bowers, we knew we were never going to have equality.

So a big part of what went on in Lawrence was educating the court about how sodomy laws were used because of course until Tyron and John were arrested, these laws hadn’t been used for quite a long time but they were used as a justification for discrimination.  And so a big piece of our strategy in Lawrence was in our own briefing, in our argument and especially in Amicus brief, to let the court know how these laws were used as a sword against us and that they really did have a large impact on our community and we’re not simply a dead letter on the books that didn’t really matter very much.

GABEL-BRETT:  Thank you, Ruth.  I’m going to bring in the other three speakers in a moment but I’d like the operator now to give people instructions about how to cue up for asking live questions by phone.  Operator.

Operator:  Yes.  Thank you.  The floor is now open for questions.  If you do have a question, please press star-one on your telephone keypad at this time.  If at any time your question has been answered, you may remove yourself from the queue by pressing one.  If you’re using a speaker phone (we ask that while posing) your question, you pick up your handset to provide favorable sound quality.  Again, ladies and gentlemen, if you do have a question or comments, please press star-one on your telephone keypad at this time.  Please hold while we (pull) for questions.

GABEL-BRETT:  I’m going to keep going and ask another question.  If you pushed star-one, we’re going to ask you to tell the operator your name and news outlet so we can properly call on (folks as we go along).  So as you all do that, I’ll turn to Mitchell Katine and ask you, Mitchell, if you could talk about what the Lawrence case meant for Texas where of course you live and practice both then and now.

MITCHELL KATINE:  Well, when this all began in 1998, it was hard to believe that this really occurred, that John and Tyron would be arrested and taken to jail in the middle of night.  And once the reality of the situation occurred, most of the people in Texas and this country and even people around the world were outraged that this type of laws really existed.  And so over the five years that Lambda Legal were defending John and Tyron and we kept losing at every court in the hierarchy as we went from appellate court, you know, trial court to the different levels, we were getting very discouraged because the judges said that due to Bowers v. Hardwick, their hands were tied.

And so when we finally got the Supreme Court and the fantastic decision by Justice Kennedy was issued, Houston as well as all of the major cities around the country were just (jubilant).  We had rallies.  We really felt like a weight had been lifted off of our shoulders and it’s been 10 years and a lot has happened.  And right now the people in Houston and Texas are very excited that this next step will give the marriage equality and thanks to John and Tyron we’re able to see the kind of the fruits of their courage pay off.  So we’re very excited and very hopeful that sometime later this year all of us who want to get married will be allowed to get married.

GABEL-BRETT:  Thank you, Mitchell.  And again, a reminder if you want to call in our live question, you need to press star-one on your phone.  Hector Vargas, can you tell us a little bit about the roles that educational efforts played during the Lawrence case (and beyond)?

VARGAS:  Yes.  Thanks, Leslie.  As the litigation efforts were being prepared for the Supreme Court case, we also (felt it was) highly important to prepare the LGBT community for an eventual decision in the case.  And certainly one of the primary goals around this, the education efforts was to show not only the LGBT community but the general public how sodomy laws branded our community as criminals and second class citizens.  And it’s really (easy) to forget I think today what the climate was back when Lawrence was about to be heard.

The vast majority of the sodomy laws, a dozen or so, that we’ve mentioned that still existed, were in the south and were part of my responsibility as southern regional director for Lambda Legal.  And of course the sodomy laws were used to deny LGBT people government jobs (until they die) and custody of your own children and certainly in the political debates around LGBT equality so in the months leading up to the Lawrence (decision) municipalities like Dallas, Texas and Maples, Florida the new sodomy laws as the justification to oppose anti-discrimination laws regarding employment and housing and public accommodations.

And so really the message was that legally and publicly the LGBT people are criminals.  And another important goal of our public education efforts was to build a foundation for hope and lay the ground work for action and advocacy no matter what would happen at the Supreme Court in the Lawrence case.  And so we developed what we called you make love, we make it legal (theories) which was a series of town hall meetings which we conducted in eight southern cities across six states and I know there were other town hall meetings in Utah and other parts of the country, where we engaged hundreds of LGBT people across the country to galvanize and organize in preparation for the decision.

And what we wanted to make sure was that the community was ready to redouble efforts to challenge sodomy laws and other discrimination should we happen to lose in Lawrence or to concentrate our efforts on non-discrimination (ordinances and fact sheets) and other equality measures should we win.  And what our public education efforts helped do is build empowerment and hope so that we could see a day like today where we’ve made so much progress on LGBT equality.

Obviously there’s so much more that we have to do in the public education arena, but what Lawrence helped do is lay the ground work for where we are today.

GABEL-BRETT:  Thanks, Hector.  We have one more speaker and I’ll get to this in summary and then operator, do we have a call on the line?

Operator:  Yes we do have a question coming from Howard Mintz of San Jose Mercury News.

GABEL-BRETT:  Please go ahead.

Howard Mintz:  Hi.  This is Howard Mintz of the Mercury News in San Jose.  I don’t know who would be best to (fill) this question, but I’m curious with, you know, with Lawrence on the books, I know that when (Perry) was originally filed there was kind of mixed views on whether the time was right to go forward with the case like that and here we are in the cases in the Supreme Court.  I’m curious if any of you have some thoughts on how the perspective may have evolved on that situation as these cases progress to the point it is now.

GABEL-BRETT:  Jon, do you want to take that one?

DAVIDSON:  Sure.  You know, I think at any particular time we have to evaluate, you know, what we see as the current – the current climate and to make predictions on what we think might happen as the court at that time – that case might reach them and I don’t think anybody really at that time thought we would see quite the rate of progress that we’ve made and the number of advances that have been made in the several years that the Perry case has been pending.

You know, we had lost every single state electoral battle on marriage itself at that point and at this point we’re now having just one, three marriage battles (affirmatively) and defeated another attempt to enact the constitutional amendment.  We also saw in the interim the dismantling of Don’t Ask, Don’t Tell and most notably we saw I think the president shift his position from believing and stating that marriage should be between a man and a woman to not only agreeing that heightened scrutiny should apply to sexual orientation discrimination but to ultimately taking the position that (propagate) itself as unconstitutional and that as a personal matter at least he believes that same sex couple should be allowed to marry everywhere in the country.

So, you know, I think many of us did have concerns at that time but at the moment I’m feeling very optimistic.

Howard Mintz:  OK.  Thank you.

GABEL-BRETT:  Thanks, Jon.  Again, reminding folks on the call, if you have a question, please press star-one and we’ll put you in the queue.  Let me turn to Susan Sommer please.  Can I ask Susan what role the Lawrence decision has played in other important decisions involving Don’t Ask, Don’t Tell and the other marital relationship cases that we’ve already had decided?

SOMMER:  Sure.  Of course some of (these grounds have been) covered by my (hard to do it) eloquent colleagues so I’ll try not to repeat, but on the front of Don’t Ask, Don’t Tell, first before Lawrence, the sexual intimacy of gay men and lesbians can be criminalized and branded immoral by state.  This was a large part of the justification for Don’t Ask, Don’t Tell and with Lawrence of course and then ultimately congress recognized the gay and lesbian people have a protected (liberty right) bounded in the constitution to be gay, to engage in sexual intimacy, to have the same personal relationships on the same terms that other people in the military could have and it did finally come to pass, that the government could not make a condition of service in the military hiding the fact that you are a person who does or may engage in the very sexual intimacy and have the very kinds of relationships that the Supreme Court (inaudible) said it is your right to have.

When it comes to marriage, as well Lawrence was a really essential step that without which I don’t think we would be anywhere where we are today.  It’s no coincidence that the first victory in a marriage case came just five months after Lawrence in Massachusetts in the Goodridge case and that Lawrence has been heavily cited and relied upon in every court decision around the country affirming the freedom to marry.  In a very (inaudible) sense Lawrence said, you can’t (define) a fundamental liberty right so narrowly as to say, oh well, only heterosexuals have the right to engage in that kind of sex or for that matter to be married, once there is a (foundational) right that people enjoy.  Gay people can’t be carved out of entitlement to that protection as well.

Lawrence (was diffused) with messages about the equality that gay and lesbian people deserve as well as the dignity of the relationships and I do think that has played out in marriage cases around the country and (we hope will) in the Supreme Court as well.  And I also think it’s really critical to recognize how Lawrence both reflected a growing public acceptance of gay people but also helped to dramatically advance that acceptance and understanding in the form of public opinion.

In 2003 we had six members of the Supreme Court, people whose average ages must have been around 70 years old (not exactly) you know, the vanguard of merit and radicalism who very respectfully proclaimed the basic humanity, dignity and rights of gay people and essentially apologized for the discriminatory and (disdainful) treatment gay and lesbian people have received from the Bowers case in 1986 and all that flowed from it.  This was really powerful stuff that raised (rainbow flags) I think both literally and figuratively around the country.  And in the 10 years since, we’ve seen 10 jurisdictions grant the freedom to marry, nine states and the District of Columbia and I think Lawrence is very much the reason that we’ve had this kind of progress in the past decade.

GABEL-BRETT:  Thanks, Susan.  Paul Smith, about 10 years ago this time you were preparing to argue in Lawrence v. Texas so perhaps you can give us a little insight, what are the folks who are preparing to argue before the Supreme Court now, (just an) idea what you think they’re doing to (before).

SMITH:  Well, they’re certainly practicing arguing.  The most important thing you can do is actually (keep) the hard questions fired at you and try to (craft the answers).  Certainly Lawrence knowing the historical (stakes) I was put through the wringer pretty well by Ruth and Susan and a bunch of other people getting ready.  And actually we would have a session where people would act as justices.  We would then analyze the kind of answers that we wanted to make sure we (give) and by that time you get ready for argument – by that time (you’re at argument) you have those answers to become a second nature hopefully and there’s the whole effort of getting you ready has gone to the point where we you say things the way you want to say them.

So (I’m very much) sure that’s what they’re doing.  Of course (Ted Olson is) extreme veteran of this.  (He’s argued – he’s had cases, argued close to 50 cases) in the Supreme Court so he knows how to do it better than most anybody in terms of experience.

GABEL-BRETT:  Thanks.  So Lambda Legal put in Amicus briefs (of course in most of these cases) coming up so I wonder if I could call on Jon first and Susan second to say a little bit about the argument we made in our case with regard to Perry and the case with (DOMA).  Jon, can I call on you first?

DAVIDSON:  Sure.  Our friend of the court brief in the Perry case talks about – it agrees that courts should apply heightened judicial scrutiny to laws that discriminate based on sexual orientation that the considerations that courts have pointed out for win that’s appropriate apply equally to sexual orientation discrimination as other forms of discrimination that the courts view suspiciously and examine more closely.  But the brief points out that Prop 8 is one of those unusual types of laws where the level of scrutiny doesn’t even matter.

And it notes that what Prop 8 actually did was the California Supreme Court is held in remarriage cases which Lambda Legal was one of the counsel - that same sex couples were entitled as a part of the California equal protection clause to be treated equally and have equal dignity given to their relationships and to be equally entitled to marry.  That was an interpretation of Article I Section 7 of the California constitution and what Prop 8 did is actually amend that section of the California constitution adding a new Article I Section 7.5 to say that notwithstanding that guarantee of equality to everyone else, same sex couples were not entitled to get married and marriage would only be between a man and a woman in California.

So what Prop 8 did was actually provide that California’s equal protection clause would be – would give less protection against inequality to gay people than anyone else.  In effect it turned California’s equal protection clause into an unequal protection clause by creating an exception to the guarantee of equality for gay people only.  And we said that that is a literal violation of the equal protection clause in very similar way to the Romer v. Evans case, where that concept of literally violating the equal protection clause was set forth by Justice Kennedy.

And because what California is doing is providing less protection against inequality to gay people than anyone else and that violates the federal requirement that states provide equal protection of the laws.  The brief also argues that sexual orientation – that Prop 8 does not meet the rational basis past the lower level of scrutiny for laws that discriminate on other basis either that the justifications advance do not actually further any legitimate state interest and the brief finally talks about the ways in which same sex couples are harmed and their children are harmed by being denied access to marriage of having it taken away as Prop 8 did.

GABEL-BRETT:  Thank you Jon.  And can I ask Susan for summary of the arguments we made in our DOMA brief about the Windsor case?

SOMMER:  Certainly.  Well, on Friday Lambda Legal brought back the dream team (Jenner & Block) and we filed a friend of the court brief in the Windsor case along with our sister organization GLAD that focuses on the application of the rational review standards.  Well, the brief makes very clear that we completely agree with the United States and with the plaintiff Edie Windsor that heightened scrutiny does apply to classification (lesbian and gay people).

We also do a kind of thorough walkthrough how (both levels) of scrutiny under the (regional) review standard also (gives) the result that DOMA is unconstitutional (regional) review (while being) a differential standard of review that does refer to government’s action is not (too swift) whatsoever and the context certainly matters as prior (precedent) decided by the Supreme Court showed.  In particular we are a historically disadvantaged group that’s targeted (for disfavor) under the governmental action and where personal interests and relationships are at stake and where what has been done by the government is really unprecedented is striking beyond the proper (role) of even of the government agency.

And here the federal government is taking the unprecedented steps in DOMA of supplanting (state) determination of who is married for a federal (law) and it’s a complete departure from United States history that under those types of circumstances the court should be particularly careful in how it applies (regional) review and DOMA really represents the perfect storm, bringing together all the kinds of considerations the Supreme Court has brought to bear in applying a searching rational review to (laws) like this and to (rejecting) justifications (put forth) that are in the case of DOMA quite blatantly were based around moral disapproval of gay people that just the legislative history, DOMA (just snatches that).

And of course as we know Lawrence has said moral disapproval doesn’t justify laws against gay people and that the other justifications that have been put forth for DOMA are just not (plausible) given how overly broad they are, how they don’t apply to heterosexual people in ways that would – doesn’t easily work and other basis that the courts should be taking into account even (where to apply) rational basis review as opposed to the heightened scrutiny that is utterly appropriate here.  Thank you, Paul and Jenner & Block for your brilliant work on that brief.

SMITH:  Thank you very much.

GABEL-BRETT:  Thank you.  I’m going to ask one more wrap up question, a quick one, of the three other panelists, Ruth, Mitchell and Hector, and then I will end with a few other reminders on this call, but here’s my question for the three of you.  You know, we’ve titled our blog symposium which starts next week, From Sex to Marriage, and as you know, (Scalia) had a famous or infamous (sense) when Lawrence was decided that the next thing that was going to happen was marriage and so my question is, would you have ever guessed 10 years ago that we would have these many states working (so that couples) have the freedom to marry and these cases pending before the Supreme Court by 2013.  Ruth, you want to take a crack of that one?

HARLOW:  Sure.  Well, as everyone on this call knows, I’m probably one of the most conservative people in terms of forecasting progress, so I would say no, I would not have thought this would have occurred this quickly.  But on the other hand, one of the reasons why I personally decided I would step away from the gay rights movement and could go off and do other things was that we had really knocked to the foundation out from under discrimination against lesbian to gay men and it was only a matter of time.

That said, so much hard work is going on during the last 10 years to get us to this point and I think we all would have said it’s still going to be, you know, quite a slug and the effort that moves more to the political arena as the freedom to marry work is done to get us this far, but I think the LGBT movement has surprised not only, you know, it’s core constituency but society in general with how quickly it has been able to move from a situation where we were second class citizens, we didn’t have basic rights and now we’re on the brink of in a more national way getting access to, you know, relationship that in our society really defines adulthood and family and so on and so forth.

GABEL-BRETT:  Thanks, Ruth.  Mitchell.

MITCHELL KATINE:  You know, when the Lawrence v. Texas case began I think that everyone knew that one of the major purposes and advantages of the case beyond winning the case was education and I think – I think through the media, through television, through everything that’s going on over the last 15 years from when John and Tyron were arrested - that our country has been educated, our country has matured, our country understands so much more about what gay and lesbian families are, that win or lose, we’ve come such far away and our neighbors and friends understanding what our lives are like.

And so that’s the first thing that the country has become ready for marriage equality.  The second thing I want to mention is that I think we were all – some of us were surprised, some of us were just thrilled with Justice Kennedy’s (writings) in Lawrence v. Texas.  The words that he used, the concepts that he expressed were far more sweeping and powerful than I ever expected and because of the quality of his opinion and even when you read it today, it’s so strong that I might not have thought that marriage equality was coming soon but after reading Lawrence v. Texas and Kennedy’s opinion just like Justice (Scalia) did when we all read that opinion, you can’t help but think that the next step would be marriage and so I’m hoping that Justice Kennedy will write one of the opinions.

GABEL-BRETT:  Thanks, Mitchell.  Hector.

VARGAS:  What Mitchell said.  I think, you know, I spent the last – and part of it, last 10 years at Lambda Legal (firm and just left) a couple of years ago and through that time I worked on many of the public education efforts around the cases that Lambda Legal has brought in terms of employment discrimination (and cross-parenting) and certainly around marriage equality.  And there have been many ups and downs during that period as I know everybody on this call can attest to and to see – I think to answer the question, I’m not sure that I would have predicted 10 years down the road from Lawrence that we would have (lived many states with) marriage equality and the marriage equality issue being before the Supreme Court.

But what we saw through our public education efforts is stepping away just like that so that we could get the general community prepared as Mitchell said and ready for marriage equality and majority of American today are there and support marriage equality and so thanks to the hard work of organizations like Lambda Legal and people on this call and so many others outside of this conference call.

GABEL-BRETT:  Great.  Thank you, an excellent final wrap up comment, Hector.  I appreciate it.  And so let me just remind everyone on the call that the resources Lambda Legal has available as we approach these arguments include access to these experts for their ideas and thoughts, the blog posts we’ll be putting up starting next week, the documentary Overruled which includes an lengthy interview with John Lawrence and with Paul Smith and with Jon Davidson and with Susan Sommer and other folks who were very involved in the case.

And we hope that you’ve enjoyed this conversation.  I surely have but I want to end by thanking all the players here that took time this afternoon to share their thoughts and the journalists who joined us.  And we look forward to successful outcomes at the Supreme Court in the next few months.  Thank you very much and good afternoon.