Lawrence litigator gives first lecture in Dean's Workshop on LGBT Rights


This October, the NYU School of Law launched the Dean’s Workshop on LGBT Rights, a new monthly series moderated by Chief Justice Earl Warren Professor of Constitutional Law Kenji Yoshino. As lesbian, gay, bisexual and transgender rights continue to emerge as major legal and civil rights issues in the United States, Dean Richard Revesz has created the workshop to promote discussions on topics such as same-sex marriage and the movement to end the military’s “don’t ask, don’t tell” policy. 

“A Conversation with Mr. Paul Smith on the Future of Domestic LGBT Litigation” kicked off the workshop series on October 20. Smith, chair of the appellate and supreme court practice at Jenner & Block, won the 2003 case of Lawrence v. Texas, the U.S. Supreme Court case that struck down sodomy laws in Texas.  He discussed the past, present, and future of domestic LGBT rights litigation.

The conversation quickly turned to Perry v Schwarzenegger, in which Law School trustee David Boies (LL.M. ’67) has teamed with Theodore Olson in a federal lawsuit to overturn Proposition 8, California’s ban on same-sex marriage. Smith underscored the importance of timing and patience when taking LGBT rights cases to the Supreme Court. He used Lawrence as an example.

Lawrence was decided in 2003, a full 17 years after the court had upheld Georgia’s ban on sodomy in Bowers v. Hardwick in 1986. Although the wait was due in part to the infrequency of sodomy prosecutions, it helped that by 2003 only 13 states still had sodomy laws. Smith, as well as members of the gay-rights movement, felt the case was ready for Supreme Court review.

Currently 44 states still have bans on same-sex marriage on their books, leading some LGBT organizations to contend that the federal challenge is premature.  Yet while Smith expressed some hesitation about the timing of Perry, he also cautioned against underestimating Boies and Olson, a pair with several significant Supreme Court wins under their belts.

A week after the LGBT event, Kenji Yoshino and Barry Friedman were quoted in a New York Times story about a change in outlook for the Perry case. On October 14, Chief Judge of the United States District Court for the Northern District of California Vaughn Walker denied the motion by the proponents for Propositioin 8 to dismiss Boies and Olson’s case. Yoshino called the decision a “major victory for Olson and Boies,” and Judge Walker has scheduled a trial in Perry for January 2010, according to the Times.

“We should buckle our seatbelts,” Yoshino told the Times. “A comprehensive vetting of the empirical issues by a judicial tribunal is welcome and long overdue. Walker’s trial bids fair to be a trial in an almost scientific sense of the word.”

The workshop will continue Wednesday, November 4, with a panel titled “LGBT Rights Outside the Law: Media, Medicine, and Industry as Engines of Civil Rights.”

Posted on October 27, 2009