Gerry B's Book Reviews

From the Closet to the Courtroom: Five LGBT Rights Lawsuits that have Changed Our Nation, by Carlos A. Ball

It is a truly fascinating study, superbly researched, and remarkably readable in spite of being a complex topic.

 *Non-fiction books of this nature do not fit the star-rating system.

Publisher’s Blurb: The advancement of LGBT rights has occurred through struggles large and small-on the streets, around kitchen tables, and on the Web. Lawsuits have also played a vital role in propelling the movement forward, and behind every case is a human story: a landlord in New York seeks to evict a gay man from his home after his partner of ten years dies of AIDS; school officials in Wisconsin look the other way as a gay teenager is repeatedly and viciously harassed by other students; a lesbian couple appears unexpectedly at a clerk’s office in Hawaii seeking a marriage license.
Engaging and largely untold, From the Closet to the Courtroom explores how five pivotal lawsuits have altered LGBT history. Beginning each case narrative at the center-with the litigants and their lawyers-law professor Carlos Ball follows the stories behind each crucial lawsuit. He traces the parties from their communities to the courtroom, while deftly weaving in rich sociohistorical context and analyzing the lasting legal and political impact of each judicial outcome.
Over the last twenty years, no group of attorneys has helped to transform this country more than LGBT rights lawyers, and surprisingly, their collective accomplishments have received relatively little attention. Ball remedies that by exploring how a band of largely unheralded civil rights lawyers have attained remarkable legal victories through skill, creativity, and perseverance.
In this richly layered and multifaceted account, Ball vividly documents how these judicial victories have significantly altered LGBT lives today in ways that were unimaginable only a generation ago.

About the Author: Professor Ball received his B.A. summa cum laude from Tufts University, his J.D. from Columbia Law School, where he was a Kent Scholar and the book reviews editor of the Columbia Law Review, and his LL.M. from Cambridge University, where he was awarded a “First.” He clerked for Chief Justice Paul Liacos of the Massachusetts Supreme Judicial Court and worked as a lawyer for the Legal Aid Society in New York City in the early 1990s. He joined the law school in 2008 after teaching at the University of Illinois College of Law for eight years and at the Penn State University School of Law for five. 
Professor Ball is also the author of The Morality of Gay Rights: An Exploration in Political Philosophy (Routledge, 2003), and co-author of Cases and Materials on Sexual Orientation and the Law (West, 2008).

 

Review by Gerry Burnie

If I were putting together a mini-course on the social history of GLBT discrimination in North America, I would definitely include Gay American History: Lesbian and gay men in U.S.A.- Johathan Katz , and Carlos A Ball’s, From the Closet to the Courtroom: Five LGBT Rights Lawsuits That Have Changed Our Nation [Beacon Press, 2010]. Moreover, at the risk of coming across as a ‘missionary’ for the cause, these two seminal works should be put on every GLBT individual’s ‘must-read’ list.

When reviewing a book of this nature it is necessary to say from the outset that one cannot possibly do justice to the amount of research and detail contained therein, in a few words. This is particularly so when dealing with a topic like constitutional law—probably one of the most complex but fascinating of all the areas of law. Nor should a review like this be read as authoritative in any way—i.e. the opinions expressed are not legal opinions.

Having said that, however, Professor Ball writes in a very readable style for legals as well as those with no legal training whatsoever. Therefore, the fact that it deals with law and judicial interpretation should not deter the average reader from reading and enjoying—and learning from—this important work.

To accommodate the space available, what follows is a sample of some of the cases covered, and a more detailed summary of one of them. You may want to take note of the dates to appreciate the fact that these legal break-throughs have been relatively recent in coming.

Harassment

Jamie Nabozny was a seventh-grader (age 11, 1988) when the harassment started with some of his school peers taunting him with words like “faggot” and “queer.” The harassment grew progressively worse over a four-year period—including one instance where he was knocked into the urinal in the boys’ washroom, and then peed on—and culminated in finding himself lying on the floor of his school’s library as a boy repeatedly kicked him in the stomach while other kids cheered. During these intervening years Jamie and his parents complained on countless occasions to the school administrators. However, the officials refused to get involved; in fact, no student was ever disciplined for verbally or physically harassing Jamie.

In 1993 (now a university student)  Jamie contacted a lawyer who filed a complaint again the school district, the two principals involved, and the assistant principal, on the basis that school officials had refused to take the necessary steps to protect Jamie from harassment because he was gay. It also alleged sex discrimination by contending that school officials would have responded differently to the harassment had Jamie been a girl (records showed that one of the boys who had tormented Jamie had been suspended for calling his girlfriend a bad name). 

The Federal Court, however, ruled that there was no evidence suggesting that Jamie had been treated differently because of his sex.

It was then that Jamie contact Lambda lawyer Patricia Logue, and although no student had ever succeeded in suing school officials for failing to protect him or her from anti-gay harassment, the facts in Jamie’s case were so compelling that the lawsuit might serve as a test case for the benefit of other GLBT youth across the country.

Logue therefore argued before the U.S. Court of Appeals that government officials (i.e. the school district, school principals and vice-principal), for discriminatory reasons, had failed to provide him with the protection from violence and harassment to which he was entitled under law. She also told the court that the defendants had discriminated against Jamie both because he was gay, and because he was a boy.

Jamie had offered evidence of such discrimination, including his contention that school officials had told him on several occasions that he was to blame for the harassment because he insisted on being openly gay in school.

Logue also pointed out that it was difficult to imagine that the school officials would have ignored the level of abuse and harassment to which Jamie was subjected if he had have been a girl.

The outcome of the U.S. Court of Appeals appeal was that the three-judge panel agreed with the appellants (Logue and Nabozny) and ordered a new trial.

Now that the case was going to trial (before a jury) it was decided to add an experienced litigation lawyer to the team, and David Springer (an HIV positive individual) signed on to represent Jamie in the fall of 1996.

At the trial the lawyer for the school board’s insurance company argued that the officials were all basically good people, and that these experienced professionals had no recollection of Jamie Nabozny or of his complaints; therefore, the alleged complaints were a “pack of lies.” However the issue was not whether the defendants were good or bad people. Instead, the case was about whether the defendants had failed to address antigay harassment against a gay boy in the same way that they had in the past treated harassment against heterosexual girls. Moreover, the apparent inability of the defendants to recall anything related to Jamie Nabozny whil he attended their schools, including incidents of serious physical assaults was just not credible.

After deliberating for just under four hours the jury returned a unanimous verdict that the school officials had intentionally discriminated against Jamie because he was a gay boy.

The impact: To emphasize the impact of the Nabozny decision, the author quotes several studies that attempted to bring attention to the prevalence of antigay harassment in American public schools. For example, a 1993 survey of Massachusetts high school students reported that 98 percent had heard homophobic remarks at school and that more than half had heard school staff were five time more likely to have missed school on account of safety concerns, and four times more likely to have attempted suicide than straight students.

Professor Ball points out that it is not an exaggeration to say that the Nabozny lawsuit changed much of that when the news media reported the almost $1 million settlement, and school officials across the country scrambled to prevent what happened to Jamie from being repeated. In addition, insurance companies were now insisting that their policy-holding schools implement programs to prevent multi-million dollar, antigay lawsuits.

Family

When Leslie Blanchard died of AIDS (September, 1986) at Newark, New Jersey, he did so in the arms of his partner of ten years, Miguel Braschi. As loving partners the two men had lived together in a rent-controlled apartment in Manhattan, with only Blanchard’s name on the lease. sHowever, three months after Blanchard died the landlord threatened Braschi with eviction because he was not a “surviving spouse of the deceased tenant or some other member of the deceased tenant’s family who has been living with the tenant.

As far as the landlord was concerned, Braschi was not Blanchard’s spouse nor a member of his family. He was therefore not legally entitled to remain in the apartment after Blanchard died. However, although none of the precedent cases had gone to appellate courts, the cases nonetheless showed a tendency to recognize committed same-sex relationships with deceased tenants were entitled to anti-eviction protection.

The job of ACLU [American Civil Liberties Union] lawyer, Bill Rubenstein, was to show he appellate court that it was appropriate and necessary to define the meaning of family functionally by focussing on the extent of the emotional and financial interdependence of the parties rather than formalistically by focussing on whether the parties were linked through ties of marriage, blood, or adoption.

In the end the court did what Rubenstein had asked it to do by rejecting a definition of family that only looked to whether the individuals have “formalized their relationship by obtaining, for instance, a marriage certificate or an adoption order.”  Furthermore, it went on to say:

[T]he intended protection against sudden eviction should not rest on fictitious legal distinctions or genetic history, but instead should find its foundation in the reality of family life.

The impact: One of the beneficial things that the Braschi case achieved was that the highest court in New York provided considerable legitimacy to the claim the GLBT were as capable of forming loving and lasting familial ties as were straight people.

Marriage

Glenora Dancel and Nina Baehr were born in Honolulu in 1960. Some years later (1990), after discovering their sexual orientation as lesbians, they met, fell in love, and made a decision to get married. At almost the same time Baehr had to be rushed to the hospital regarding a serious infection, and because she had no health insurance Dancel later tried to add Baehr to her employer’s health insurance. That is when she learned that such a benefit was available only to the spouse and children of employee. She also tried to buy life insurance and name Baehr as beneficiary but was told the beneficiary could only be someone related to her be blood, marriage, or adoption. Nor was it possible for same-sex partners to register as domestic partners because domestic partners were not recognized under Hawaiian law. This meant, basically, that a serious illness could mean bankruptcy, and if either one of them was hospitalized the other could be denied the right to visit or to help make decisions about their treatment.

American laws criminalizing same-sex conduct goes back to colonial times, but it was only in the 1990s that some states started to prohibit the recognition of same-sex relationships as marital. Up until this time the courts had taken the position that thee plaintiffs were denied the opportunity to marry not because of their sex, but “because of the recognized definition of that relationship as one entered into only by persons who are members of the opposite sex.”

At issue:  Lawyers Evan Wolfson of Lambda, and Daniel Foley—a non-gay, ACLU advocate—saw the pursuit of marriage equality as the most effective way of changing the terms of debate over GLBT issues—i.e. putting the relationships and families of GLBT people front and centre, show there was just as much love and devotion there as with straight relationships.

The outcome: After the state court had rejected the initial lawsuit, the case was then appealed to the U.S. Court of Appeals (1992) by Wolfson and Foley, and as part of its reasoning the Court held that the plaintiff’s legal challenge had nothing to do with sexual orientation. In its opinion  that “homosexuality and same-sex marriages are not synonymous” because under the law of Hawaii a gay person could marry someone of thee opposite sex while a straight person could not marry someone of the same sex. This showed that they Hawaii’s marriage law classified individuals according to their sex and not their sexual orientation—something that was clearly wrong.

As mentioned above, these are just a sampling of the important milestones that have been achieved by courageous individuals willing to ‘stand-up and be seen’ for the good of the movement, and the very fine lawyers who gave of their talents in the pursuit of justice for all. It is a truly fascinating study, superbly researched, and remarkably readable in spite of being a complex topic.

 

See Journey to Big Sky by Gerry Burnie

July 11, 2010 - Posted by | Gay Literature, Non-fiction

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