2015 David A. Garfinkel Essay Contest Resources: Background

State and Federal Case Law Pertaining to Gay, Lesbian, Bisexual and Transgender Legal Issues

On the morning of June 28, 1969, police raided a gay-friendly bar on Christopher Street in Greenwich Village known as the Stonewall Inn. The bar's patrons fought back against the arrests, the altercation spilled into the streets and, as word spread, gay people from surrounding neighborhoods joined in. The rebellion lasted six days and galvanized support for the formation of civil rights organizations devoted to gay, lesbian, bisexual and transgender issues.

In 1971, three gay men – Bill Thom, E. Carrington Boggan and Michael J. Lavery – decided to set up a legal assistance corporation (the Lambda Legal Defense & Education Fund), with the corporate purpose of ensuring "equal protection of the laws and the protection of civil rights of homosexuals." When they submitted the incorporation papers for approval to the New York courts, the Appellate Division, First Department, denied the application on the ground that Lambda's purpose was "neither benevolent nor charitable," nor was there "a demonstrated need for this corporation." The applicants appealed the denial to New York's highest court, the New York Court of Appeals, in the Matter of Thom (Lambda Legal Defense & Educ. Fund, 33 NY2d 609 [1973]). Victor Rabinowitz, a straight attorney known for his representation of high-profile dissidents and leftist causes, argued on behalf of Lambda. The Court of Appeals reversed the Appellate Division decision, and Thom became the first Court of Appeals decision to significantly impact the rights of gays and lesbians.

On July 3, 1973, E. Carrington Boggan became the first openly gay man to argue before the New York Court of Appeals when he represented the amicus curiae, the Gay Activists Alliance, in the case of Matter of Kimball (33 NY2d 586 [1973]). Harris L. Kimball passed the New York State Bar exam, and the Committee on Character and Fitness reported that he possessed the requisite character and fitness for an attorney-at-law "notwithstanding the admission of the applicant to being a homosexual and having engaged in homosexual acts." The Committee made no further recommendation, and the Appellate Division denied Kimball's application for admission. On appeal, the New York Court of Appeals held that "while Kimball's status and past conduct may be now and has been in the past violative of accepted norms, they are not controlling, albeit relevant, in assessing character bearing on the right to practice law in this State." But in dicta, the Court noted that while §130.38 of the Penal Law (proscribing consensual sodomy) is a statute on our books, it is the law of this State to be observed by all.

In October 1973, Lambda Legal Defense & Education Fund commenced business, operating out of Bill Thom's apartment. It intended to recruit attorneys willing to litigate cases pro bono, but few responded because, as Bill Thom put it, "if you were outed at work, you were out of work." Even worse, attorneys known to be homosexual faced disbarment. Recalling those early days, Shepherd Rami claimed that the Lambda board consisted of "every gay lawyer or law student willing to go on the letterhead."

E. Carrington Boggan returned to the Court of Appeals to argue for the defense of Charles Mehr in People v Rice (41 NY2d 1018 [1977]) in which, though the issue was non-reviewable, he raised "novel and difficult constitutional questions . . . of conduct traditionally treated as criminal and yet, when committed privately and circumspectly, suggestive of an unwarranted interference by the State with the lately recognized and inchoate 'penumbral' right of privacy." Three years later, in People v Onofre (51 NY2d 476 [1980]), the Court of Appeals struck down New York's consensual sodomy statute as unconstitutional, twenty-three years before the United States Supreme Court came to the same conclusion in Lawrence v Texas (539 US 558 [2003]).

Other cases decided by the New York Court of Appeals that pertain to Lesbian, Gay, Bisexual and Transgender rights include People v Uplinger (58 NY2d 936 [1983]), where the New York Court of Appeals held unconstitutional the criminal prohibition on loitering "in a public place for the purpose of engaging, or soliciting another person to engage, in deviate sexual intercourse or other sexual behavior of a deviate nature." The Court viewed this case as a companion to the consensual sodomy statute it had previously struck in Onofre. In Braschi v Stahl Assoc. Co. (74 N.Y.2d 201[1989]), the Court construed the term "family" to include same-sex life partners for purposes of the Rent Control Law; in Matter of Jacob (86 N.Y.2d 651 [1995]), the Court held that the same-sex partner of a legal parent may adopt that parent's child; in Levin v Yeshiva University, (96 NY2d 484 [2001]), the Court held that same-sex couples may not be excluded from married student housing, and in Hernandez v Robles (7 N.Y.3d 338 [2006]), the Court held that the New York Constitution did not "compel recognition of marriages between members of the same sex" and that recognition of such marriages was a matter for the New York State Legislature. On June 24, 2011, the New York State Legislature passed the Marriage Equality Act and Governor Andrew Cuomo signed it into law that same day.

In the Supreme Court of the United States, another series of cases addressed the issue of homosexuality in America. In One, Incorporated v Olesen (355 US 371 [1958]), the U.S. Post Office and the FBI deemed a lesbian, gay and bisexual publication, One: The Homosexual Magazine, obscene and prohibited its delivery via U.S. mail. The publishers of the magazine sued and the Supreme Court agreed with the plaintiff – the first time the Supreme Court ruled favorably in a homosexual issue. Bowers v Hardwick (478 US 186 [1986]), involved the State of Georgia's law prohibiting consenting adults from engaging in homosexual acts in private. The Court's majority held that the "right to privacy" protects intimate marital and familial relations, but not sodomy between homosexuals because "no connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated." In Romer v Evans (517 US 620 [1996]), the Supreme Court struck down Colorado's Amendment 2 that denied gays and lesbians protections against discrimination, ruling that "[t]hese protections . . . constitute ordinary civil life in a free society." But four years later, in Boy Scouts of America v Dale (530 US 640 [2000]), the Court ruled that the Boy Scouts of America had a constitutional right to ban gays because the organization's opposition to homosexuality is part of its "expressive message."

In 2003, in the case of Lawrence v Texas (539 US 558), the Supreme Court overturned its 1986's Bowers v Hardwick decision and ruled that "[t]he state cannot demean their [homosexuals'] existence or control their destiny by making their private sexual conduct a crime." Lastly, two Supreme Court decisions were handed down on the same day in 2013: United States v Windsor (570 US ___) and Hollingsworth v Perry (570 US ___). In Hollingsworth, the Supreme Court ruled that opponents of same-sex marriage in California did not have standing to appeal the lower court ruling that overturned the State's ban (known as Proposition 8) and, in Windsor, the Court held that Section 3 of the Defense of Marriage Act was "unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment." In an interview in the New Yorker, the 84-year-old plaintiff Edie Windsor revealed that upon learning of the Supreme Court’s decision she exclaimed, "I wanna go to Stonewall right now!" And she did, celebrating the landmark decision well into the evening with hundreds of supporters gathered at the Stonewall Inn and on Christopher Street.

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