Remarks on Receiving the
2019 Father Robert F. Drinan Award
Mark David Agrast
ABA Section of Civil Rights and Social Justice
Las Vegas, Nevada
January 25, 2019
Thank you, Wil, for your generous words and your friendship. Thank you, President Carlson, and thank you to the Section for this wonderful honor.
Father Drinan was and remains a presence in my life. I have many vivid memories of him—his warmth, his mischievous sense of humor, and his unwavering optimism about our nation and the capacity of the law to advance human dignity and well-being.
I had a hand in the creation of this award during Mike Greco’s term as chair of the section, and I had the privilege of presenting it 16 years ago to one of my heroes, Jack Curtin, whose courage, eloquence, and passion for justice epitomized the nobility of our profession at its best.
As I look at the list of those who have received this award before me, I see the names of beloved friends and mentors who devoted their lives to advancing justice in and through our profession. I cherish the memories of those who are no longer among us—John Pickering, Jack Curtin, Jerry Shestack, Roy Hammer, and Bob Drinan himself—and I celebrate those who are very much with us, and continue to inspire us by their example. I am honored and humbled to be in their company.
This Section has been an important part of my life for some 30 years. It offered me a place at the table and an opportunity to serve.
My arrival on the scene coincided with what I think of as the Section’s second generation, when it broadened its core commitment to civil rights to encompass emerging issues at the frontier of the battle for civil rights, civil liberties, and social justice. These were often unpopular causes, and it was largely through the efforts of this Section that they were gradually brought into the mainstream.
One of those unpopular causes was the struggle for LGBT rights. Even within the Section, there were many who were uncomfortable with the issue. Some had had limited contact with LGBT individuals, and were not persuaded that they merited constitutional or statutory protection. Some feared that the Section would lose its credibility or dilute its effectiveness by entering the fray.
For me, the issue could not have emerged within the Section at a more propitious moment. As a young associate fresh out of law school, only just coming to terms with my own sexuality, I had been spurred into action by the Supreme Court’s 5-4 decision upholding the Georgia sodomy statute in Bowers v. Hardwick, and particularly by Justice White’s concurrence, cavalierly dismissing as “facetious” the notion that LGBT individuals would have a constitutional claim to equal treatment under the law.
I got in touch with Abby Rubenfeld, who was chairing the Section's committee on the rights of gay people (as it was then called), to ask what I could do to help. She told me that the Section was preparing to make its third attempt to get an anti-discrimination resolution through the House of Delegates, and she asked me to draft the report.
The measure had twice been defeated, each time by a narrower margin. By 1989, it had the support of several leading sections and state and local bars. But it again encountered strong resistance in the House. One opponent gave a fire and brimstone speech on the floor, warning that by supporting the resolution, the ABA would be endorsing "sodomy and those who commit it." Some opponents cited the Bible. Others proposed poison pill amendments to exempt the military, to exempt employees working with children, and to define sexual orientation to include pedophilia and bestiality. Nevertheless, when the vote was taken, the resolution carried by a margin of two-to-one.
That victory did not usher in the millennium, but it proved to be a watershed moment, laying the foundation for a series of ABA resolutions over the next three decades, which in turn were implemented through congressional testimony and amicus briefs, on such matters as adoption and child custody, discrimination in the military, judicial bias, and ultimately, marriage equality.
It was my privilege to have a hand in drafting and managing most of these measures, and to experience that transformation in real time. By the time we presented the marriage equality resolution in 2010, we had the support of the entire ABA leadership and nearly every living Past President of the Association, several of whom spoke on the floor. The vote, when it came, was virtually unanimous.
Many of those in this room could recount similar stories about unpopular causes that the Section championed when it was far from easy to do so—voting rights, the death penalty, affirmative action, the rights of terrorist suspects and asylum seekers, to name only a few.
Today, as so many of those causes have entered the mainstream, it is easy to forget how lonely those early battles were and how much courage it took to stand up to ridicule and abuse. Successful efforts to change the culture always look easier in retrospect than they were at the time. Once the battle is over, people look back and wonder what all the fuss was about.
Today, the work of this Section has been taken up by a range of other entities across the length and breadth of the ABA. But before there were commissions on women and minorities in the profession; before there were commissions on immigration, and homelessness and poverty, and the rights of persons with disabilities; before there was a rule of law initiative or a center on human rights; and long before there was a commission on sexual orientation and gender identity, it was this Section that spoke for those who lacked a voice in the profession and in society at large.
It is because of the work of this Section and its allies throughout the ABA that our Association has transformed itself from a trade association into an instrument for “Defending Liberty [and] Pursuing Justice”; from an organization that actively excluded lawyers of color and members of other disfavored groups into an inclusive community.
The Section was called to life at a dark moment in our nation’s history. Today, we again find ourselves in dark times. For the first time in my life, people wonder whether the center will hold. Whether our institutions, our checks and balances, the rule of law itself, can withstand the onslaught of an administration like no other in our history.
The damage, both at home and abroad, has been profound. It may well get worse. And it may take a generation and more to reverse the effects. But we must not allow ourselves to succumb to despair.
Bob Drinan would tell us not to be despondent. He would tell us to act. When the moment comes, it will be our responsibility to repair what has been broken, to rebuild what has been torn down. We must be ready.
Many years ago, after much deliberation, the Section adopted a torch as its symbol. It is not simply an emblem, or a trademark, but an embodiment of our mission: to keep the flame of justice alive in dark times. It is up to all of us to tend that flame and make sure that it is never extinguished.
Let me close by thanking my parents—my father and my late mother, whom we lost just two months ago—who taught their children to live with integrity and to serve others; my brother Bob, who has honored their example; and my husband, David, whose love and support has been a constant in my life throughout our 30 years together. I spent many years working for the right to marry, but I never dreamed that we would actually be able to exercise it in our lifetime.
Finally, I thank the leaders of the Section of Civil Rights and Social Justice, past and present, and the leaders of this great Association who have stood with us in our struggles for justice and dignity for all. You are my heroes, one and all, and I thank you.
