Attorney Paul Smith Reflects On LGBTQ+ Rights in Courts

Last Thursday, students, faculty, and community members gathered in Alumni House for a conversation on LGBTQ+ rights in courts featuring Paul Smith ’76 — veteran litigator for LGBTQ+ civil rights, Visiting Professor from Practice at Georgetown Law School, and Amherst College Trustee who argued 21 cases before the Supreme Court. Provost and Dean of the Faculty Martha Umphrey, who is also former President of the Association for the Study of Law, Culture, and Humanities, joined Smith in the discussion. The Department of Sexuality, Women’s and Gender Studies (SWAGS) co-sponsored the event with the Center for Humanistic Inquiry (CHI). 

The two speakers began by outlining their motivations behind their involvement in the legal fight for LGBTQ+ rights. Umphrey explained that she used to work for a lawyer in Ferndale on litigation challenging Michigan’s sodomy laws. 

“That [involvement] formed my sense of the uphill battle that we were facing in the late 80s, early 90s,” she said.

Smith added that when he first started practicing law, there were no cases heard in court or laws passed by Congress concerning LGBTQ+ rights.

“The gay and lesbian people were practically unseen at the time because there were so many pressures for people to hide,” he said. These pressures included sodomy laws, religious condemnation, and classification of homosexuality as an illness.

The ruling of the Supreme Court in Bowers v. Hardwick (1986), which upheld the legality of sodomy laws, was another setback for the community. LGBTQ+ rights advocates reoriented towards a state-based rights campaign and spent the next 17 years trying to remove laws that criminalized sodomy on a state-by-state basis, ultimately reducing the number of states where sodomy was illegal from all 50 to just 13.

In 2003, following the arrest of two men engaged in an intimate act in a private home, Lambda Legal — a national civil rights organization focusing on LGBTQ+ rights — reached out to Smith with a proposal to argue the case that would eventually become known as Lawrence v. Texas (2003) in the Supreme Court. The goal of the case was to invalidate sodomy laws across the nation.

“I wanted to give a good showing for the community, which finally felt they had a chance to speak truth to power,” Smith said. “It was by far the most amazing case in my entire career.” 

The court’s decision was taken to the last day of the term period. Smith described the moment of winning the case as a “wave of emotion” that swept through the courtroom. “Suddenly, the gay community had been recognized as having validity and rights,” he said. “People suddenly felt after this that they were more part of the American Constitution, more part of the American people.”

Smith explained that the AIDS epidemic in the 1980s and 1990s contributed to the cultural shift that made the ruling possible. As a result of the epidemic, the gay community gained visibility that it previously lacked. “There was initially a horror from the American people … but it eventually led to a certain admiration for the toughness and the activism [of the gay community],” he said.

The Lawrence v. Texas ruling became a foundational precedent for Obergefell v. Hodges (2015), which legalized same-sex marriage. “There has always been this idea that there are certain freedoms and liberties that you have that are not specifically stated in the Constitution, but that ought to be protected from state interventions,” Smith said. He added that Justice Anthony Kennedy, who authored the court’s majority decisions in both proceedings, proceeded to “[write] the marriage case as a liberty case.”

While securing equal protection for LGBTQ+ people and legitimizing same-sex relationships was a priority during the 80s and 90s, the speakers later turned to discuss what they described as legal challenges facing transgender people. Smith pointed to a recent Kansas state law affecting driver’s licenses issued to transgender residents whose gender markers had been changed. He said that this law reflected an effort “to make [the transgender] population legally disappear.” Umphrey echoed this sentiment and added that “it is not a criminalization of people, but a disenfranchisement at a really important level.”

During the Q&A section, attendees raised questions that concerned optimism around the Supreme Court, the best route for future advocacy, and relationship between law and language used for LGBTQ+ community among other topics.

Luke Healey ’29 reflected on the discussion’s historical framing. “It was interesting to hear about the history of LGBTQ+ rights and court decisions in the context of the moment they were decided,” he said. He added that the talk served as a reminder that “courts and court decisions are never completely removed from the world.”

Annika Liss ’29 further emphasized the event’s forward-looking aspect. “The talk provided an optimistic outlook as we look towards the future of trans rights in the U.S.,” she said. “It’s not going to be an easy fight, but there are paths available to us.”