Kevin Cathcart is the Executive Director of Lambda Legal, the nation’s oldest LGBT legal organization, and a longtime leader in the lesbian and gay community. Since 1992 he’s worked hard to make the national organization an unparalleled force through impact litigation and public education. Cathcart was also executive director of Gay & Lesbian Advocates & Defenders (GLAD) in Boston—New England’s lesbian, gay, and AIDS legal organization—between 1984 and 1992.
To conclude the series, Cathcart shares his views on the future of marriage in America and the recent unexpected victory in India, and we go inside Barack Obama’s White House for the intimate gathering everyone’s been talking about.
Chris Delatorre: Lambda Legal is the oldest national legal organization dedicated to achieving full civil rights for the LGBT and HIV communities. How have things changed in the organization since Bill Thom ran the operation from his Greenwich Village flat in 1973?
Kevin Cathcart: Everything is different! Lambda Legal was one of the first national organizations founded in the post-Stonewall years, at a time when most people, particularly most professionals, like lawyers, believed that being out was a dangerous, career killing move. The first few years Lambda Legal relied on an incredibly brave and dedicated bunch of volunteers. Remember that Bill Thom tried to found Lambda at the start of 1972, but the state of New York refused to grant non-profit status to a group focused on “homosexual” rights. A five-judge panel from the state appellate division unanimously denied the application, saying there was “no demonstrated need” for Lambda Legal’s work. The founders appealed to New York’s highest court and after an 18 month struggle, won the right to incorporate.
So Lambda Legal was effectively its own first client, before the organization was even able to exist! We had no staff, no real office, and it was hard to raise money for our cases as most gay people were afraid to have their names on donor lists. But the founders had a vision of a national organization and slowly and steadily built towards it. Now we are an institution with 86 staff and five offices nationwide. While this size of operations was unimaginable in 1973, we are still spread very thin over a large country where the unmet need for LGBT and HIV-related civil rights work is great.
The HIV epidemic fueled our first growth spurt in the early 80s, as illness and anger brought many gay men out of the closet and led them to start donating money and, in many cases, leave bequests to support the work. Lambda Legal brought the first HIV discrimination case in the country, in New York City in 1983, on behalf Dr. Joseph Sonnabend, an early AIDS doctor, when the co-op apartment building where he rented office space tried to evict him because he treated people with AIDS. And over those years, we, like many community organizations, went from being a gay group to being a gay and lesbian group, to being focused on LGBT civil rights. And Lambda Legal has always maintained our focus on HIV/AIDS related work.
The next big change in the community came with our losing the United States Supreme Court case, Bowers v. Hardwick. Again, anger—a sense of having been kicked in the gut by the country’s highest court—motivated a lot of people to come out, to volunteer, to donate. So Lambda Legal grew.
The last big change I’ll mention is the change in the legal community. In Lambda Legal’s early years, cooperating attorneys were hard to come by, and were mostly very political civil rights lawyers from small or solo practices. Today, almost every major law firm in cities like New York wants to help us with our work. I can remember when there were no openly gay lawyers in big firms; in the past few years these firms have competed to hire openly gay and lesbian associates.
But let me add one thing that I wish had changed more, which is the kinds of cases we do. While we have expanded our dockets in major ways, with second parent adoption, marriage, and transgender rights cases, there is still too much overlap with the kinds of cases we were doing twenty or twenty-five years ago. Custody. Employment. Military. Access to health care. In the early days our school cases involved colleges; now they involve high schools. We have changed so much, and yet so much remains to be changed.
Delatorre: New Delhi, India, recently lifted its ban on consensual gay sex. While the ruling is said to be only applicable in New Delhi, the head of the foundation that filed the petition that prompted the ruling described the country as “finally entering the 21st century.” It’s only been six years since sodomy was decriminalized in the United States. Lambda Legal’s U.S. Supreme Court victory in Lawrence v. Texas guaranteed LGBT people the right to consensual sex by wiping out all existing sodomy laws in the nation, but not without a loss two decades earlier in Bowers v. Hardwick.
What changes between rulings prompted the victory, and are we seeing a similar social dynamic in developing countries like India today? How does the legacy of Lawrence affect social progress in other countries?
Cathcart: As I mentioned, the loss in Hardwick was a great blow to the community, but also a great organizing tool in the community. People felt threatened and outraged by the facts of each case: in both Hardwick and Lawrence, gay men were arrested in their own homes and prosecuted for private, consensual, non-commercial, adult sexual activity. Gay and civil liberties advocates believed we were going to win Hardwick, so that loss was a huge disappointment. But we didn’t let it stop us. The decision was ridiculed in the press and in political cartoons as soon as it was released, and Lambda Legal and other community legal and political groups kept working to get rid of sodomy laws on a state-by-state basis. In 2002, for example, we overturned the Arkansas sodomy law at that state’s highest court. So when Lambda Legal took Lawrence v. Texas before the U.S. Supreme Court, there had already been a real shift on the ground. At the time of the Hardwick case, a majority of states had sodomy laws, and now there were only 13 left. This was a clear trend nationwide, and I believe that fact can’t be underestimated in making it possible for a majority of Supreme Court justices to understand the issue and rule in our favor. I believe it is always easier to convince the Court to follow a clear trend and do a cleanup operation, and harder to get them to tell a majority of the country to change.
While I am not an expert in foreign laws, I think we are seeing—slowly and steadily—changes worldwide, on a range of LGBT issues ranging from sodomy laws to military service to relationship recognition to adoption. Each new victory reinforces the progress and the trend continues. The victory in India is incredibly important because of the size of the country and the number of people potentially affected by this ruling. We in the U.S. are sometimes smug about the progress we have made, but many countries have pulled ahead of us in terms of military service and marriage and we have a lot of catching up to do!
Delatorre: How does Lambda Legal fit into the gay rights movement? Has the idea of “radical” changed, and how is legal work different from that of other advocacy groups?
Cathcart: Lambda Legal, as well as our sister legal organizations GLAD (Gay and Lesbian Advocates and Defenders), the ACLU Lesbian and Gay Rights Project and the National Center for Lesbian Rights, have long been key players in the LGBT movement. What I’m about to say may seem like a strange criticism of the movement (coming from me), but I think that for a long time the movement and LGBT people relied too much on the litigation groups and on legal victories to move our rights forward and didn’t build a robust enough political arm. The work of building more political strength has been going on the past several years but we are weak on the ground in lots of places, including Washington, D.C. where we are still fighting for passage of Hate Crimes and employment protections and for a repeal of “Don’t Ask, Don’t Tell” and the so-called Defense of Marriage Act (DOMA). Our movement needs more legal resources, but it also needs more political power; when we have both we will be unstoppable.
I’m not sure I know what “radical” means anymore—in the LGBT movement or in our society in general. In recent decades we have flipped between centrist Democrats and conservative Republicans; not much that is radical in a progressive sense informs American politics. And I think that has trickled down to LGBT politics as well.
Delatorre: In Varnum v. Brien, the Iowa Supreme Court ruled that denying same-sex couples the right to marry was unconstitutional. Just a month before, the LGBT community suffered defeat when the California Supreme Court upheld Prop 8—the ballot initiative passed by voters last year to ban marriage for same-sex couples in the state. Six states now extend marriage to include same-sex couples, and Washington, D.C. is poised to be next.
While clearly gaining traction, the issue of marriage equality is still divisive for Americans, including LGBT people. Some say we’re going about achieving equality the wrong way by zeroing in on an issue like civil marriage, because of its ties to religion or because it’s perceived as another manifestation of heterosexist oppression. Now a new federal court case will challenge the validity of Prop 8. Is this another Bowers v. Hardwick? Or the next Lawrence v. Texas?
Cathcart: The Iowa ruling, the first unanimous victory in the country in a marriage case, surprised a lot of people, particularly people on the coasts who think that progress in the United States begins near the oceans and works its way inward. This time the big step forward was right in the middle of the country! We have gone from one state with equal marriage rights to six states in less than one year. We won’t keep up this steady rate of progress, but we will continue to make progress, state by state, though the hard work in many states will be in reversing the state constitutional amendments banning equal marriage rights put in place in the past decade. There is a lot of hard political work to do to enable us to keep fighting in the courts, and we need more people—LGBT people and our allies—to be involved to make that happen.
The way that civil and religious marriage are twisted together in this country adds a serious extra burden. It is because these two are separate in many European countries that they’ve had an easier time moving civil marriage forward. And it doesn’t help right now that we have a president, a very smart lawyer who has taught constitutional law, who refuses to acknowledge the difference between civil and religious marriage—a difference I cannot believe he does not understand.
I’ll be honest with you: I find broad federal marriage challenges very scary. I’ve talked about the victories, the trends, the changes state-by-state between Hardwick and Lawrence, and how we won Lawrence when the states were lined up 37 to 13 in our favor. Right now they are 44 to 6 against us, with about 30 state constitutional amendments also against us. And we have a conservative majority on the U.S. Supreme Court—and we are likely to for some time to come. I can’t say how any of these cases will conclude, but I can tell you these are very frightening odds, given that a loss at the U.S. Supreme Court will stay in place for a long, long time. Narrower cases with strong factual records are critically important right now.
Delatorre: This year, for the first time in history, the White House hosted a Stonewall commemoration of the 1969 NYC riots. You were there.
Cathcart: First, some context. There’s a lot of frustration in the LGBT community these days with President Obama and his administration: slow progress; a perceived lack of Presidential leadership on our issues; a sense that the strong words of the campaign in support of LGBT civil rights have become much more muted and measured since the inauguration; the continued enforcement of “Don’t Ask, Don’t Tell,” with more than 265 lesbian and gay servicemembers kicked out of the military during this administration; and the offensive legal arguments made in the Smelt brief (a marriage case) have combined to create an almost perfect storm of frustration and distrust. At the same time, most LGBT people and groups that I know of—from grass roots to organizations and their leadership—still have high hopes for this administration. So the White House reception hit a complicated mix of feelings. Unfortunately, what I think got lost in this is how big it is—how historical and important—to have the President of the United States host the first ever White House reception for Pride Month and specifically as a celebration of the 40th anniversary of Stonewall. These are the Stonewall Riots that we, and the President, were talking about, were celebrating at the White House. This is big and needs to be recognized as such. But saying “this is big” is not the same thing as saying “this is enough.”
I went with some trepidation, wanting to believe that I would feel good about being there, that something would happen to break the malaise, that I wouldn’t be riding the train home that night in a bad mood, grinding my teeth and regretting the trip. The good news was that the President gave what I’d call a campaign speech: strong, forceful, filled with promises of what was to come. He was using his bully pulpit the way he has for other issues, the way I want to see him keep using it for LGBT people. Mixed in, alas, were reiterations of his positions on “Don’t Ask, Don’t Tell,” which guarantee a long haul before the policy is changed, and his support for a Congressional overturn of DOMA but not his support for marriage. I was hoping he’d announce something new, something concrete, something long overdue. That didn’t happen. But the speech he gave, and the way he delivered it, gave hope for the future.
We—the LGBT community and all who care about our civil rights, have to keep the pressure on. We are competing with a lot of big issues for time and attention and unless we do our part of the politics, we won’t get the progress we deserve. This is how politics works, how Washington works. As was noted at the White House, it is the 40th anniversary of Stonewall. Our job, collectively—and I can think of no better way to honor and celebrate all that has happened in these 40 years—is to reinvigorate the movement. Then we will see progress like we’ve never seen it before.