This morning's Washington Post has a great article on the strategy and field work that led to Lambda Legal's victory in the Iowa marriage case. The article provides well-deserved recognition for Camilla Taylor, the Lambda lawyer who was the brains behind the lawsuit, but who got less attention than she should have when the decision was announced because she recruited a prominent local attorney to argue the case in the Iowa Supreme Court and to serve as the public face of the lawsuit.
The Post article is also important because it illustrates the kind of pre-litigation groundwork that goes into lgbt rights cases. Some critics of litigation, especially gay marriage litigation, argue that it is naive at best, counterproductive at worst, to try to win rights in court, because judicial opinions can trigger a backlash. It's true that courts are often not the way to go, but it's also true that lgbt rights litigators have understood that for years, if not decades at this point. The response to this political-legal problem is neither to ignore it nor to relinquish litigation as a tool, but to construct lawsuits in the same way that community organizers construct grassroots movements - by years of studying particular jurisdictions, patient outreach, building networks, recruiting allies, and, ultimately, bringing lawsuits. The Iowa litigation is a great example of that process at work. And no one views Iowa as over: advocates will continue their work there until the risk of politically overturning the decision is effectively ended, as it has in Massachusetts, where GLAD used exactly the same kinds of approaches. (In fact, the GLAD marriage lawsuits quietly invented this strategy.) These lawsuits illustrate what I call multi-dimensional advocacy. True, it can fail as well as succeed, but it has moved the ball far beyond the stale debate over whether courts are the source of rights.
The Post article is after the jump
For most of the country, the unanimous decision this month by the Iowa Supreme Court to legalize same-sex marriage was an unexpected and seemingly random victory for a movement that has long drawn its deepest support from major cities in liberal coastal states.
But for Camilla Taylor, a Chicago-based lawyer for the gay rights group Lambda Legal, it was the logical conclusion to a deliberate seven-year effort to make the Midwestern state one of the first in the country to allow same-sex marriage.
Coming just months after voters in California outlawed same-sex marriage, the decision was also a much-needed jolt for a group of loosely coordinated gay rights activists and legal experts who had been quietly building the case for marriage equality in states where they thought conditions were favorable, including Iowa and a handful in the Northeast.
"We were all deeply disappointed by the vote in California, but we were all hopeful for Iowa," said Taylor, a married mother who is not gay but calls same-sex marriage "the civil rights cause of my generation."
"I was brought up to think there's nothing more fulfilling than trying to achieve social change and do something right for society," added Taylor, a 38-year-old Cleveland native and Columbia Law School graduate.
Activists such as Taylor work mostly out of the spotlight -- she traveled regularly to Iowa from Chicago for years, doing research and laying the groundwork for her landmark case.
Their techniques differ, though, depending on whether they are pursuing same-sex marriage through the courts, as in Iowa, or through a state legislature, as in Vermont, which legalized gay marriage April 7.
Lawmakers in Maine, New Hampshire and New Jersey are debating similar measures. New York Gov. David A. Paterson (D) has said he plans to submit a same-sex marriage bill this week. The D.C. Council voted unanimously last week to recognize same-sex marriages performed elsewhere, and lawmakers are expected to take up gay marriage legislation this year.
When taking the court route, the activists identify same-sex couples to bring test cases, typically after meeting and spending time with scores of couples. They prepare the selected couples for what is likely to be intense, sometimes harsh media attention. They study the state's constitution and review past court rulings, waiting to move until they feel the political and legal climate is favorable.
When taking the legislative route, the activists first get to know the political dynamics to identify friendly and potentially friendly lawmakers. They find residents to call lawmakers to express support for same-sex marriage. They start phone banks and petition drives. And, as with court action, they wait until they think their chances are good.
In Rhode Island, for example, activists said they won't push gay marriage until at least 2011, when Republican Gov. Donald Carcieri, a an opponent of gay marriage, leaves office because of term limits.
Opponents of same-sex marriage say activists are using the courts and legislatures because they are afraid to put ballot measures before voters. Using these routes is "most certainly not fair to the voters -- and it's not fair to the people of Iowa and Vermont," said Carrie Gordon Earll, a spokeswoman for Focus on the Family.
"What they've done is look for weaknesses," Gordon Earll said. "It really is a chess match: One side moves, then the other side does."
When Taylor joined Lambda Legal's Midwest office in 2002, Iowa was hardly at the center of the marriage debate.
Some people involved in gay rights efforts tried to tell Taylor she was wasting her time. Iowa was, they told her, a conservative, religious state in America's rural heartland, and the effort was better concentrated on the more liberal coasts. "There were many people telling us we were crazy," she said, "that we were foolhardy even thinking of filing a case, and that we might create a backlash."
But as she immersed herself in Iowa's politics and history, she learned about its progressive past, including how the Hawkeye State was a pioneer in school desegregation, the first to admit a woman to its bar, and among the earliest to allow interracial marriage.
Taylor soon went about laying the groundwork. She and her colleagues crisscrossed Iowa meeting gay and lesbian couples and organizing workshops and panels on issues that concerned them. She usually spoke as part of a panel that might include community members or the parents of a gay or lesbian child. Her colleagues did the same.
Sometimes it was lonely in those early days, Taylor recalled. At one event, just seven people showed up.
She also had to build trust, which meant having to answer what became a regular question: Was she gay? She told them no, that she is married to a man, an architect, in Chicago and has a daughter who turns 2 in July. "I think people are disappointed on both sides when I tell them," she said.
By December 2005, three years after she took on the cause, Taylor decided the foundation in Iowa was set and she filed a case for six gay couples. She selected them strategically, finding those who were representative and picking a pair from every region of the state.
She also made another key strategic move -- selecting a local co-counsel, someone respected in Iowa and by the state's Supreme Court, where she knew the case would ultimately be decided.
From her research, including talking to Iowans, she decided to take a chance and ask Dennis Johnson, a former solicitor general who was heading the litigation department at a prominent Des Moines firm. She had never met him and was taking a risk by calling him, because her plan to file a lawsuit was a secret.
"I had never heard of Lambda Legal, or her," Johnson said. "I had never been involved in gay rights at all." But he said his firm was always interested in having its lawyers do pro bono work, so he agreed to look at the case.
Now Johnson says, "I've never felt so strongly about a case in my entire career." He credits Taylor as the one who really got the case moving. "She came up with the strategy, she researched Iowa law, she was the primary author of all the briefs. . . . I think she wrote briefs as best as I've seen in my career."
Taylor also looked for a local group to partner with, a strategy that national gay rights groups consider crucial to success. There were several small gay and lesbian groups in different Iowa cities, but they mostly acted as resource centers for such things as health care and social networking.
"There wasn't a strong local group that would be the go-to group for organizing a campaign for marriage equality," said Sharon Malheiro, who founded the group One Iowa shortly after Taylor filed suit on behalf of the six couples.
"If we were going to do this in Iowa, it had to be Iowans talking to Iowans," Malheiro said. One Iowa began coordinating with Taylor and Lambda Legal, with the local group taking over much of the public education effort.
Taylor made one other major tactical move in the fall of 2006, when she added the couples' children as plaintiffs. Some people in the gay advocacy movement objected, she said, saying that children should not be inserted into the marriage debate. But Taylor wanted to raise the issue of the rights of children of gay couples to deflate the opposition argument that marriage was solely about procreation.
A lower court sided with Taylor in 2007. When the decision came from the Supreme Court on April 3, she was elated. "Today, dreams become reality, families are protected, and the Iowa Constitution's promise of equality and fairness has been fulfilled," she said at a news conference.
Johnson, her co-counsel, said: "We have all of you courageous plaintiffs to thank: Go get married, live happily ever after, live the American dream."
Taylor said she has already been invited to two same-sex weddings and hopes to be invited to many more. She says she intends to go to all of them.