Selecting the Perfect Plaintiff in Impact Litigation: Equality for all or some?

By Peter Dunne

Dale Carpenter, a Professor at the University of Minnesota Law School, has recently published a new book exploring the Supreme Court case of Lawrence v Texas, the 2003 decision, which struck down the United States’ remaining sodomy laws.

“Flagrant Conduct,” which was just reviewed by Dahlia Lithwick for the New Yorker Magazine, tells the back-story of Lawrence, delving into the complex relationships that existed between the main protagonists in the litigation.  The book is particularly interesting because it suggests a very different narrative to the story set out in Justice Kennedy’s majority opinion and addresses the all-important question of selecting plaintiffs for impact litigation.

On the one hand, Mr. Lawrence and Mr. Garner were hardly the ideal petitioners to place before the Court. As Lithwick states: “An interracial, lower-middle-to-lower-class pair hooking up in a seedy apartment in a marginal neighborhood: Lawrence and Garner were hardly a civil-rights litigator’s dream plaintiffs. They were not the type to tug at judicial heartstrings.” But on the other hand, LGBT activists had only limited opportunities to challenge the remaining sodomy laws, and they needed to find individuals who would not be affected by the ancillary consequences of admitting a criminal offense.

Carpenter’s book is particularly relevant given recent high profile efforts to achieve marriage equality in the Federal Courts. What his book reveals is that, by 2003, social understanding of the harms of sodomy laws had reached such a level that the Supreme Court was willing to grant a favorable decision even to plaintiffs with whom they may not have felt easy or for whom they may not have had a huge amount of sympathy.

An important question that advocates must ask is whether we have now reached that same stage with same-sex marriage. Would the Supreme Court be willing to extend marriage rights to couples with whom they do not feel particularly comfortable?

When looking at the couples whom litigators have chosen for the challenges to DOMA and Proposition 8, one cannot help but notice that most if not all fit into the stereotypical ideal of the suburban middle class – two moms raising children, two dads who are actively involved in the local PTA. This obviously reflects a fundamental reality that there are thousands of same-sex families in America who are just the same as any other heterosexual household except for the fact that they are unfairly burdened and discriminated against by State and Federal laws.

But are these people the only ones who deserve equality? Or perhaps more importantly, are they the only ones for whom the Supreme Court would be willing to extend marriage rights? What about Mr. Lawrence and Mr. Garner? Should they have been entitled to get married, even though they were at best distant acquaintances? Heterosexuals in very short-term relationships get married and divorced in the United States every day.

My honest answer is that I am not sure that the Lawrence plaintiffs would prevail in a marriage case before the current Supreme Court. And if the answer is actually “no,” then can we really say that true equality has been achieved? A right to marry, which was only gained because the judges liked or felt comfortable with the particular plaintiffs in front of them is not true equality. The Justices should not have to like or feel comfortable with individuals for those plaintiffs to succeed. Otherwise the Court is merely saying that there is a particular class of gay people who are entitled to equal rights, and all others must conform to that standard. What about those who will not or cannot conform? Where is their equality?

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