In the LGBT civil rights struggle that will surely stretch years into the future, Kevin Cathcart must be counted a long-term player. In 1992, “happily living in Boston,” where he had run the Gay & Lesbian Advocates & Defenders (GLAD) since 1984, he was tapped to lead what was then known as the Lambda Legal Defense & Education Fund when its executive director of six years, Tom Stoddard, decided to move on.
With a series of dinners around the country that culminated in the May 7 Liberty Awards gala in Manhattan, Cathcart has now celebrated 20 years at Lambda Legal and, without sugarcoating the challenges ahead, shared an “optimistic” outlook on the state of the struggle four days later in an interview in his office at the eastern tip of Wall Street.
When Cathcart first came to Manhattan, Lambda had only two offices and 17 of its 21 staffers were located in New York. Its annual budget was just $1.6 million. Four years before the dramatic therapeutic advances on HIV, the LGBT community could not know when, if ever, it would emerge from the darkest days of the AIDS epidemic; in fact, in 1997, Stoddard would die from complications of the virus.
In the legal arena, advocates were still reeling from the 1986 ruling in Bowers v. Hardwick, in which the Supreme Court rejected, on a 5-4 vote, a challenge brought by the American Civil Liberties Union to the Georgia sodomy law. In the majority opinion, Justice Byron White wrote, of Lambda’s argument about the freedom of gay people to engage in sex, "to claim that a right to engage in such conduct is ‘deeply rooted in this Nation’s history and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious.”
Four years after Cathcart arrived at Lambda, the group was again before the Supreme Court with a major civil rights suit –– this time its challenge to Colorado’s Amendment 2, a voter initiative that barred the state and localities from enacting sexual orientation nondiscrimination protections. In 1996, Lambda prevailed, the court finding that the amendment limited the access of gay people to the political process for no reason rationally related to the interests of the state of Colorado. Only anti-gay animus, the 6-3 majority found, could explain its enactment.
Lambda’s victory in the 2003 Lawrence v. Texas case, which struck down the nation’s remaining sodomy laws, was the most important LGBT civil rights gain yet. In a 6-3 majority, the Supreme Court, finding anti-gay bias as the only explanation for sodomy laws aimed at same-sex behavior, ruled that consensual private adult sexual conduct was protected liberty under the 14th Amendment’s due process clause.
Less than six months after the Lawrence victory, the Massachusetts marriage equality ruling won by the group Cathcart formerly ran, GLAD, irrevocably changed the thrust of legal advocacy in the LGBT community. Lambda, which now has five offices, 92 staff members, and a budget of more than $13 million, has been a key player in the explosion of gay marriage litigation. As with every group pressing the issue, there have been advances and setbacks.
In 2009, the group won a unanimous verdict from the Iowa Supreme Court recognizing the right of same-sex couples to marry there. Less than three years earlier, in contrast, New Yorkers were staggered by a 4-2 defeat at the Court of Appeals, in a case also brought by Lambda. Later in 2006, Lambda won a major –– though not complete –– victory when the New Jersey Supreme Court found the Legislature must give same-sex couples all the rights and benefits of marriage by whatever name they choose. The Legislature chose the name civil unions, and Lambda is now back in state court challenging that law.
Lambda’s most recent marriage lawsuit is its first federal case seeking marriage rights at the state level. The group is arguing that Nevada’s 2009 domestic partnership law, which grants same-sex couples “the same rights, protections, and benefits” and “the same responsibilities, obligations, and duties” as marriage, denies them of their federal equal protection rights because it treats two classes of people “similarly situated… in every way” –– straight married couples and same-sex domestic partners –– differently.
Upbeat about the strength of Lambda’s suit in Nevada, Cathcart described it as “a classic textbook case of equal protection.” He noted that its logic is not new, only the group’s choice of courtroom venue. In its challenge to the New Jersey civil union law, Lambda has also asserted a federal equal protection claim along with state constitutional claims. The New Jersey suit is backed by strong empirical findings from a state commission chartered to examine the success of the civil union statute, which several years ago unanimously concluded that it failed in its stated purpose of guaranteeing equality for same-sex couples.
Taking the Nevada law to federal court has significant potential for shaking up the marriage map. The same logic would apply to other civil union and comprehensive domestic partnership jurisdictions –– including Delaware, Illinois, California, Oregon, Washington, and Hawaii, in addition to New Jersey.
In fact, Cathcart clearly believes the impact could go further than the litigation currently challenging California’s Proposition 8. He said he is “optimistic” about how that case will turn out, but explained that the endpoint will likely be a ruling specifically focused on the circumstances in California.
When the American Foundation for Equal Rights (AFER) hired Ted Olson and David Boies, opponents in the Bush v. Gore case that decided the 2000 election, to challenge Prop 8, the star litigators said they were committed to taking the issue of marriage equality all the way to the Supreme Court. Lambda, along with other established LGBT litigation organizations, were initially hostile to the effort, arguing that the current ideological configuration of the high court made it unwise to raise the issue there at this time. Three years later, Cathcart credits the attorneys and AFER with “doing a great job” –– but he doesn’t expect the California case to get to the Supreme Court.
The 2010 victory AFER won before District Judge Vaughn Walker found that the right to marry was “fundamental” and that the 2008 voter initiative violated the due process and equal protection rights of same-sex couples. In February, however, a Ninth Circuit Court of Appeals panel upheld Walker, but on considerably narrower grounds, finding there was no rational basis for depriving same-sex couples of rights they had enjoyed since the California Supreme Court granted marriage equality in May 2008; the only plausible explanation for the amendment, it found, was constitutionally impermissible animus and moral disapproval.
Cathcart couldn’t predict whether a larger panel of the Ninth Circuit would re-hear the case, but he expects the narrow February grounds to be the Ninth Circuit’s final word on the matter, one way or the other. Should AFER lose before a larger Ninth Circuit panel, he said, the high court would have no reason to take up any appeal, since it likely has little appetite for the gay marriage question. There would be more reason for the court to entertain an appeal from Prop 8 supporters should they lose, but it could conclude that a narrow ruling applying only to California was something it could leave alone.
Cathcart has an opinion on that. “I think we have a pretty clear idea,” he said. “There is a clear path to how this ends. And I am optimistic that it is going to be upheld.” That optimism is not based on any change in his 2009 view that the current court is inhospitable to gay marriage claims. “I still think that that’s the truth,” he said.
As confident as Cathcart is in the arguments Lambda is making in Nevada and New Jersey, he said he was “absolutely” sure that federal court challenges to the Defense of Marriage Act (DOMA) will get to the high court ahead of any of the pure right to marry cases. In July 2010, a district court judge in Boston struck down DOMA’s section 3, which deprives legal same-sex marriages of federal recognition, on the grounds that it denies Massachusetts same-sex couples their equal protection rights guaranteed by the Fifth Amendment and interferes with the prerogatives of the State of Massachusetts in administering certain federal-state programs, in defiance of the 10th Amendment.
Earlier this year, a San Francisco judge also struck down DOMA’s section 3 based on Fifth Amendment equal protection grounds in a case where an employee of the federal Ninth Circuit Court of Appeals challenged its denial of insurance coverage to her same-sex spouse. GLAD and Lambda have brought similar lawsuits in New York and Hartford on behalf of same-sex couples whose marriages are legal in New York and several New England states.
At least one of those cases, Cathcart said, “is a winner” at the appellate level. If that’s true, the Supreme Court would have no choice but to take the case, since the federal government could not recognize same-sex marriages in some federal appellate circuits but not others.
The issues raised in the DOMA litigation, he explained, are also “an easier conceptual challenge and lift. We’re not asking the court to tell any state what to do.” Instead, the goal is to change the way the federal government treats gay and lesbian couples who marry in states where it is legal.
He likened the DOMA issue to what Lambda came up against in its sodomy litigation. When the Georgia sodomy law went before the high court, more than half the states still had such statutes. By 2003, only 13 did. “Thirteen states is easier,” he said. “They were no longer being asked to tell a majority of states what to do. In 2003, they were only asked to bring a small minority along in a clean-up operation.”
Despite the marriage referendum loss in North Carolina several days before, Cathcart was upbeat about the prospects for success in November, when Washington State, Maryland, Maine, and Minnesota may also be voting on marriage equality in one fashion or another. “If we win a couple of those and also get marriage back on line in California,” he said, “it makes it feel more inevitable than it did before.”
Conceding that a loss of three or four contests in November would be “a terrible thing,” he noted, “We have shown we can win in the courts and in the legislatures in far worse times.” Pointing to the overwhelming rejection of repeal efforts earlier this year by the Republican-dominated New Hampshire Legislature, Cathcart said, “I can’t be more surprised by North Carolina than I was by New Hampshire.”
Cathcart was effusive in his praise for President Barack Obama’s comments two days earlier endorsing marriage equality. “It didn’t feel like, ‘Oh, I got forced into it,’” he said. “It felt like the best part of the last campaign. It sounded like he finished evolving. He did it beautifully.”
Asked if he was troubled by the president’s statement that marriage will “continue to be worked out at the local level,” Cathcart said, “No, he was recognizing the state of play. In 2012, marriage jurisprudence is state by state. Federalizing the issue too soon is unlikely to be good.”
Despite a lengthy discussion of marriage equality, Cathcart made a point of emphasizing that the issue of nondiscrimination on the job is probably what concerns LGBT Americans more than any other. Lambda’s hotline got about 7,000 calls in 2011, and “employment is the largest single thing people call us about, year in and year out.” The group’s offices in Atlanta and Dallas cover 20 states, none of which offers any nondiscrimination protections above the local level. He praised Equality Florida’s success in pushing for municipal and county ordinances, but said that “local laws are never as strong as state laws.”
Noting Census findings that show impressive numbers of same-sex couples raising children in regions such as the South, Cathcart said that offering them legal protections could have “a snowballing effect... If you don’t feel safe in your job or in your housing or regarding custody of your children, it’s effectively a gag order. It is not safe to be politically active.”
Pointing to a recent decision from the 11th Circuit Court of Appeals in the case of a transgender woman fired by the Georgia General Assembly as well as a ruling last month by the federal Equal Employment Opportunity Commission regarding a transgender woman denied a job by the Bureau of Alcohol, Tobacco, Firearms and Explosives, Cathcart said, “We are amazingly closer than we were just a year ago to having gender seen as sex for discrimination purposes.” However, future progress, in the courts and federal agencies, he warned, is dependent on the election outcome in November –– not only for president but for control of Congress as well.
“We desperately need to pass ENDA, and we need it to be trans-inclusive,” he said of the long stalled effort to enact the federal Employment Non-Discrimination Act.
Still, Cathcart does not see a strong push on marriage equality as inconsistent with any other goal Lambda has. “I sort of believe in a rising tide theory on marriage gains,” he said. “We litigated Iowa because we thought we could win and because we thought it was critical to have a heartland victory.” In other words, married gay and lesbian couples in the Midwestern farm belt are well positioned to change hearts and minds that have too infrequently been engaged.