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Roundup: Media's Take

Dale Carpenter: How the Law Accepted Gays

Dale Carpenter, a law professor at the University of Minnesota, is the author of the forthcoming “Flagrant Conduct: The Story of Lawrence v. Texas.”

THE prestigious law firm King & Spalding has not fully explained its decision this week to stop assisting Congress in defending the law that forbids federal recognition of same-sex marriage. But its reversal suggests the extent to which gay men and lesbians have persuaded much of the legal profession to accept the basic proposition that sexual orientation is irrelevant to a person’s worth and that the law should reflect this judgment. The decision cannot be dismissed simply as a matter of political correctness or bullying by gays.

Gay-rights supporters have transformed the law and the legal profession, opening the doors of law firms, law schools and courts to people who were once casually and cruelly shut out because of their sexual orientation.

But it was a process that took a half-century to unfold. In 1961, a Harvard-trained astronomer, Frank Kameny, stood alone against the federal government. Fired from his federal job simply for being gay, he wanted to petition the Supreme Court. But at a time when all 50 states still criminalized sodomy, even the American Civil Liberties Union declared it had no interest in challenging laws “aimed at the suppression or elimination of homosexuals.” Mr. Kameny wrote his own appellate brief; without comment, the court turned him away.

Over the next quarter-century, lifted by gales of change in sexual morality and in the status of women, gay-rights advocates mobilized at every level of the legal profession. In the late 1960s, they successfully challenged the antigay civil service policies under which Mr. Kameny had been discharged. In 1973, a small group of gay lawyers formed the Lambda Legal Defense and Education Fund, enlisting the help of prominent heterosexual lawyers. They drafted legislation protecting gays from discrimination in housing and employment.

At the same time, gay-rights supporters began lobbying law schools, and then professional organizations like the American Bar Association, to adopt nondiscrimination policies. With these in place, they pressured schools to exclude law firms from on-campus recruiting unless they agreed not to discriminate against gay students in hiring. The Association of American Law Schools endorsed this approach. These developments paved the way for firms that had once fired suspected homosexuals to adopt their own nondiscrimination policies.