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July 01, 2010

Interview with Paul M. Smith

by Stephen J. Wermiel

SW: Take me through a little bit of growing up: background, childhood, schools, and then we’ll get up to the award.

PS: Well, if you want to go to the very beginning, I was born in Salt Lake City, where my father was teaching for one year at the university in the 1950s. He taught math, and, at that point, decided he was going to go into a different line of work and went to work for this little company called IBM, so they moved back to California. So, I started elementary school in Los Angeles, which is where my father was from. And then we moved when I was in second grade up to what later became Silicon Valley, Los Gatos, near San Jose, where I went to elementary school. And then in the middle of sixth grade, my father got transferred.

SW: Still working for IBM?

PS: Yes. To New York, so we lived in Stamford, Connecticut for junior high and high school, and I became easternized.

SW: Was he in New York, because IBM had offices in Stamford, didn’t they?

PS: No, not so much Stamford. IBM has offices all over Westchester, but not in Connecticut. So, he commuted on the train into the city for a while, but then he worked in White Plains, and he worked in Armonk, which is the headquarters. And then when I was in twelfth grade, he got transferred again to Nice, France, so I spent my senior year of high school not in Nice, but a boarding school at the International School of Geneva. My brother who is a year older than I basically started college a year early and had a whole international experience, which was kind of fun.

SW: And then from there to Amherst?

PS: To Amherst. I went four years in college, majored in political theory, political philosophy, wrote a thesis on the morality of shifting revenue from the rich to relieve the poor, and then went straight through to law school.

SW: Anybody at Amherst particularly inspire you?

PS: Well, the person I wrote the thesis with was George Kateb. He’s an amazing and eminent political philosopher and inspiring person. There was also, in those days, the president of the college, John William Ward, who was an eloquent spokesman for the liberal arts model and for the values of the college community, and had led the faculty to sit in at Westover Air Force Base right before I arrived in college in 1972 to protest the war. Henry Steele Commager was still teaching then, so it was a remarkable place to go to college with no shortage of inspiration. Yale Law School was a really interesting place too. It had already become Yale Law School in the sense that there were no grades for a semester, and you could take courses on all sorts of interesting topics about the study of law or literature, or law and economics, et cetera. I really enjoyed law school actually.

SW: Did you know you wanted to go into law all the time or a long time?

PS: I was interested in some sort of public policy job to make the world a better place and considered for a while in college whether I should go to the Woodrow Wilson School or the Kennedy School or something like that. And I had long talks with professors about that, and, of course, my thesis advisor wanted me to go and get a PhD. At least in those days, he couldn’t credibly suggest to me that the jobs were going to be out there if you finished the process, so he didn’t push me too hard on that. Once it became clear I could get into a place like Yale, everybody seemed to think that was as good a compromise. You get a little political philosophy, a little public policy, and a really nice experience.

SW: And a law degree to boot.

PS: And a law degree.

SW: How about at Yale, anybody there particularly influence you?

PS: I wasn’t so much bonded to any one person. It was more that the whole place was an inspiration. I ended up being the editor-in-chief of the law journal. I was pretty much in my office editing. But that was a really interesting, challenging experience, particularly for someone like me who hadn’t done anything in between college and law school.

SW: That was your first real management kind of role?

PS: It certainly was that. And it was a lot of responsibility, and pressure, and dealing with lots of egos, and then trying to get 1,800 pages published in a year. We still had typewriters and were printing it with hot lead. I mean, it seems remarkable, but there were no word processors. I guess there were in law firms by 1979, but there weren’t in the halls of Yale Law School.

SW: And who were some of the later literati that were on your staff?

PS: The other officers included Steven Carter, the famous novelist and Yale Law professor; Martha Minow (now the dean at Harvard Law); Reinier Kraakman, who’s at Harvard; Jeffrey Strnad, now at Stanford; and several other future professors. Sonia Sotomayor was also one of the editors. So, it was interesting. About half went into the academy, which I think actually reflects the class at Yale. There’s a very high percentage of professors who come out of there. We have in our class something like twenty law deans.

SW: Really?

PS: Yes.

SW: Wow. Tough competition.

PS: But it was an enriching sort of place because people actually didn’t feel like they had to compete with each other too much. It was more learn from each other. And the fact that the class was small and everybody who tried hard could get on the journal and could get a clerkship and that sort of thing made a very different atmosphere than you might have found at other schools, I think.

SW: So, did you work at a firm your first summer, second summer, I guess?

PS: Actually, my first summer I worked for a little firm in New York. I did media law. It represented the media. It was called Townley & Updike, and its major client was the Daily News. It was in the Daily News Building on 42nd street. I had an interesting experience there. It was the summer of 1977, which was such a bad summer in New York that they made a movie about it called The Summer of Sam. We had the Son of Sam, and we had this terrible blackout and looting in the Upper West Side, and there was a bombing in the building next door to our offices by some Puerto Rican terrorists. And, of course, the subways were just horrendous. It was an interesting experience just to be in New York City on your own in those rather grim times. And the second summer, I came down here to Washington. I worked for a firm called Shea & Gardner, which no longer exists either, and which was another not too big place. I guess I had a penchant over the years for not big institutions--Amherst, Yale, and smaller law firms. And then I was able to get in a firm after third year, before the clerkship, and I went to San Francisco to work for Morrison & Foerster.

SW: And then did you do an appellate clerkship for the Supreme Court?

PS: I clerked for Judge James Oakes on the Second Circuit and lived in Brattleboro, Vermont, and came down to New York City for a week a month when we would have sitting. It was a nice year. Judge Oakes was really a very pleasant and interesting guy and became very friendly with his clerks. He had lunch with them every day and didn’t feel like he had to keep you at your desk until ten at night. So, I think the contrast between our experience and the experience of clerks on the Second Circuit down in the city was quite striking. For example, that year John Roberts was clerking for Judge Friendly, so he had a different sort of judge to deal with.

SW: Not quite as warm and fuzzy?

PS: Not so much. But a great judge, just a very different experience. I remember my co-clerk and I told our friends down in the city, the other clerks, that we had been in the hot tub with Judge Oakes and hadn’t remembered to bring our bathing suits up to the farm. He said, "Oh, we’ll just get in anyway.” The clerks were having trouble imagining that sort of thing. It was Vermont after all.

SW: How did the Supreme Court clerkship come about? Did you apply to everybody or did you...?

PS: Yes, I applied to either everybody or almost everybody, and it was more or less luck in the sense that a person from the year ahead of me was clerking for Justice Powell and had hands-on experience with my work on the journal, and was able to sort of put a good word in. I think anybody who gets a Supreme Court clerkship is lucky, but Justice Powell was a wonderful person to work for, and I made great friends with my co-clerks and learned a great deal.

SW: Any particularly memorable cases you worked on?

PS: A case I worked on most ended up not being issued because the vote was 4-4. It was a question of absolute versus qualified immunity for the president in civil suits. It was called Kissinger v. Halperin, and we battled back and forth in Justice White’s chambers about whether it should be qualified or absolute. Justice Powell believed that the president should be absolutely immunized from civil rights actions. And, so, I guess it must have been Justice Rehnquist who had to recuse himself, leading to a 4-4 vote. So, they ended up deciding the same issue the following year with much of the same opinion in the Fitzgerald case.

SW: Harlow v. Fitzgerald.

PS: Yes, because Justice Rehnquist was back in action. Justice Powell prevailed, and absolute immunity was established for the president on that kind of constitutional tort at least, involving the performance of his office. I guess we learned much later that you can still sue the president for other things.

SW: So, that’s interesting. You spent a lot of time on that, and then it didn’t come to fruition.

PS: Yes. But, you know, I think I did have the sense when that happened that there was this next case in the wings and the issue would be resolved. I thought it was an interesting thing to work on.

SW: All right, and then after the Supreme Court?

PS: Well, I thought about going into government. I clerked the year that the Reagan election occurred, so that made the government a little less interesting for me because I wanted to work for a democratic administration. There were, in that year, all these new little firms forming. One of them was called Onek, Klein & Farr, and it was Joe Onek, coming out of the White House, where he’d been Deputy Counsel to the president. Joel Klein and Bartow Farr were at a different firm, and they started their own firm, and I was about the fifth person in the door. And we did whatever we could find to do for a while. It was not a great financial decision. It’s not one that people make very often these days, but these days, of course, they have bonuses for Supreme Court clerks. We didn’t have such things. The firm grew over time up to about twenty, twenty-two people, somethingl ike that, and it was written up in The Post as the perfect law firm.  And then, of course, that was its death knell.  I was there for thirteen years with Joel and Bartow. The last three years, we were just doing appellate work and didn’t have any associates, and we were just trying to do as much Supreme Court work as we could, and pretty successfully. The competition wasn’t yet quite as fierce as it has become for Supreme Court cases. We were really part of the invention of the modern Supreme Court bar.

SW: The Supreme Court practice.

PS: Along with Sidley and Mayer Brown. And then Joel Klein, in 1994, got a job replacing Vince Foster, the then-deputy counsel to the president who had just committed suicide. So, we were down to three, and Joel was the guy I happened to work with more often, and so it just seemed like the time to look around for something else. And I had gotten to know Bruce Ennis when he had the competing boutique firm back in the 80s, and others like Don Verrilli and David Ogden who had all come over to Jenner & Block, and so I talked to them, and it seemed like the right place to come to still have some of the feeling of the old boutique firm but in a larger institution.

SW: So, you’ve been here at Jenner since 94, 95?

PS: Today is my anniversary from 1994, sixteen years.

SW: Wow, congratulations. Who knew we were timing it to such an important thing.

PS: Yes, exactly.

SW: All right, so let’s talk about some specific cases, I think, at Jenner, and then some other things. So, obviously Lawrence v. Texas is of great interest. You were not involved in that at the beginning of the case?

PS: No.

SW: You got involved at the appellate level?

PS: We got involved only at the Supreme Court level. The case came up through the Texas courts and was litigated primarily by Lambda Legal, along with a Texas lawyer named Mitchell Katine. It took along time to get up through the various levels of the Texas court, first the court of appeals and then the court of criminal appeals. But they called us up when they had lost finally in the court of criminal appeals. That court had upheld the Texas sodomy law and its application to private adult consensual conduct. So, we got involved primarily through a guy named Bill Hohengarten. He was a clerk for Justice Souter and had done some work with Lambda Legal. I had done a little bit with them, but not too much. They first asked us, “Would you advise us on whether we should seek review in the Supreme Court? Is this a good time?”  And we did that, and then they said what claim should we raise, and we worked that through with them, and it was very much a partnership with some very, very smart lawyers over at Lambda Legal.

SW: So, what made you think it was a good time?

PS: Well, first of all, the opportunity to get the issue to the Supreme Court was not something that came along every day. The Court was not going to review the constitutionality of a criminal statute unless that statute had been applied to somebody. And the problem with sodomy laws was not so much that people were being pulled out of their homes and prosecuted for what they were doing with their lovers, which is what happened in Lawrence itself, but that people were being penalized in others ways. They would lose their jobs; they would lose their children if they admitted they were gay. And so, those kinds of harms existed, but those were not a basis to give anybody standing.  So, first of all, you had to recognize this was a pretty unusual opportunity. The second thing that had happened was that Romer v. Evans had come along, a case challenging the amendment in Colorado that basically deprived gays of all civil rights as a matter of state law. And it had been held unconstitutional 6-3 with both Kennedy and O’Connor in the majority, and we thought that was very encouraging. And the third thing was that there wasn’t any particular reason why the Court would take the case if all it was going to do was leave in place the existing law of Bowers v. Hardwick. It would be such a gratuitous slap in the face to the community to do that.

SW: So, they would just deny cert?

PS: Right. And so we thought it was a fairly low-risk thing, both because we thought we probably could get the votes, and because they didn’t have any reason to take it to affirm, and we didn’t want to waste the opportunity. So, that was sort of the thinking that went into it, and we had to go through some discussions with the rest of the leadership of the community that had been litigating these issues, and everybody seemed to come around to that view. We had to decide whether to make it a frontal assault on Bowers or not and got there pretty quickly.

SW: So, the strategy of how far to push and how far to go was also, obviously, something challenging?

PS: Yes. And you could challenge it both as an equal protection violation or as a violation of people’s fundamental substantive rights, and the latter was what the Bowers holding was about. And we ended up deciding that the two arguments actually worked well together—that the equal protection argument got stronger if you talked about how the interests at stake were very fundamental, and the fundamental rights arguments worked better if you talked about how this is really a particular group of people who had been singled out to have this very harsh treatment imposed upon them, and there wasn’t any particular reason not to put both of them in. We kind of thought we would win on equal protection because the law inTexas was focused just on same-sex conduct and the very same conduct—oral sex, for example—was perfectly lawful if people were of different sexes. So, the law singled out gay people for legal regulation. They had even repealed laws against having sex with animals at about the same time they passed this law. So, it seemed like a really clear equal protection problem, and indeed it was.  Justice O’Connor wrote her concurrence on that basis, but Justice Kennedy, writing for the majority, decided to go on due process instead and overrule Bowers.

SW: I’ve always assumed that the Court thought the equal protection argument would open up too many potential risks of having to deal with gay marriage, or even adoption, or other comparative equal protection situations.

PS: You can speculate that that was the reason why they went that way. There was also a different problem, which was there were other sodomy laws out there that were not limited to same-sex conduct, and it was far from clear that if you went on equal protection grounds, those laws would be subject to invalidation under equal protection. Justice O’Connor, in her concurrence, suggested that they would, on the theory that while they were not limited in their coverage to same-sex conduct, in practice they tended to be used only against people in same-sex situations.  But that’s not an easy argument to make. And so one thing that the selection of due process as a basis did was get rid of all sodomy laws immediately and solve that problem and make it a case not about gays so much but about people’s freedom, everybody. So, it had those virtues, but I think it has had a limiting effect on how Lawrence is used and how it affects courts in all of the subsequent litigation, which has all pretty much been equal protection cases. I say that, even though I think the case should have a dramatic impact on equal protection cases.

SW: Because it always seems as though it’s the constitutional version of a wolf in sheep’s clothing. It’s really equal protection logic in due process clothing, in a sense, I think.

PS: Right. And the conduct and the discriminatory classification are so caught up with each other. To say that you have a constitutional right to make choices about your sexuality and who you’re going to engage in sexual intimacy with is at the same time to be saying something about how this group of people have the right to respect, and fair treatment, and autonomy, and shouldn’t be a subject of oppression. And so, the two ought to work very closely together, and I think the courts are seeing it that way gradually, but it has not been a linear process.

SW: And do you think that Lawrence has influenced the gay marriage decisions in the states?

PS: Well, it’s certainly my view that the whole movement toward gay marriage in litigation was very significantly influenced by the fact that the Court had just written an opinion that discussed in quite eloquent ways how gay relationships deserve the same respect as heterosexual relationships and function the same way in people’s lives. And you can talk about whether there would’ve been one less vote in the Massachusetts Supreme Judicial Court, who knows. I think it has an enormous impact on people to have the Supreme Court validate that basic position. Even Justice Scalia saw as tantamount to holding that there’s a right to marriage in his dissent.

SW: Before I move onto other cases, do you see Lawrence as sort of down the road breaking the log jam, not just in marriage, but in adoption and other areas? I mean, is Lawrence really a first building block toward full equality?

PS: It was essential to get Bowers overruled and get the Court on record saying gay people deserve respect constitutionally. And I think there will eventually be a continued development of the equal protection jurisprudence, all of it ultimately based on Lawrence. Whether it’ll be an adoption next, or whether it’ll be a marriage next, or whether it’ll be some other thing is a little hard to say. The legislative side may change the picture. There’s talk of “don’t ask, don’t tell” disappearing, for example. So, there may be a lot less litigation in that area.

SW: All right. Let’s talk about the voting rights area a little bit. So, you’ve litigated a couple of fairly important race-related redistricting cases.

PS: Yes. We found ourselves as the primary lawyers here at Jenner for the Democratic members of Congress in the redistricting litigation that arose after the last census ten years ago. And those cases, even when they’re about partisanship, often end up being litigated through the prism of racial fairness because there’s a lot of interrelation between those two, and there’s a lot of law out there about how you draw districts to be fair to particular racial groups. And so, while we were litigating those cases, we were arguing two things. We did try very hard to get the courts to accept the principle that partisan gerrymandering is itself a violation of the equal protection clause. And in the Pennsylvania congressional redistricting case, we got four of the necessary five votes for the proposition that the Pennsylvania map was a clear enough violation of the equal protection clause just because it’s so bent over backwards to help Republicans at the expense of Democrats.  But there were also, in other states, very important racial components to the arguments that were being made.  Some of them were made against Democrats by Republicans who would come in and say, “Now, this map in New Jersey that creates a fourth district around Newark spreads the minorities out too far. That’s a violation of the Voting Rights Act. You have to repack them.” We were able to fight that off. But in Texas, it was a different story. As you know, there was this enormous redrawing of the map in mid-decade after the Republicans got full control of the government of Texas and ended up knocking off, I think, six members of Congress.  And the way they did that, in part, was to do everything they could to take away any influence that African Americans would have over their representatives. Like, for example, taking Fort Worth and cutting it up into about six pieces of pie.

SW: Each one going into a different district?

PS: Into a different suburb, yes, each one of them ultimately dominated by Anglo Republicans in the suburbs. So, they picked up a Democratic seat in that location, and also by redrawing a lot of the rural districts where African Americans were a key part of the coalition that was still electing some white Democrats—Stenholm and others. And they all got thrown out of office by bringing more white suburban voters into those districts as well, and they also monkeyed around with Hispanic districts in ways that created various arguments that we could make.  As you may recall, ultimately the Court held that only one thing was illegal in that map, and that was one district in south Texas that was a Hispanic district that was drawn extremely bizarrely. We got one district back.

SW: But overall, not a happy ending.

PS: No, no. It’s not easy to be representing plaintiffs in such cases.  I think courts are appropriately reluctant to be too aggressive about redrawing maps because they don’t like to think of themselves getting into the political thicket. On the other hand, it’s always been my view that courts have an important role to play to make sure that politicians do not abuse the power to design the electoral system that elects them.  Courts should, in that situation, be less hesitant about checking what legislators do, because the machinery of democracy is the main guarantee of people’s liberty, and so as John Hart Ely has argued, that’s arguably one area where courts should be relatively aggressive about exercising judicial review.

SW: But do you think we still have a significant problem of racial imbalance in the drawing of districts in a number of places around the country?

PS: That’s an interesting question. We have achieved an enormous increase in representation of the interests and views of minority voters over the last generation because of the Voting Rights Act and because of the application of that act to the redrawing of lines. There’s been a big increase in African American members of Congress. What worries me is that, in the next round, we may start seeing cutting back on that because the Court has been reinterpreting the Voting Rights Act in ways that make it arguably easier for people to not keep those districts in place.  And, in some parts of the South, the almost only-democratic districts that are out there are districts electing African Americans. And so, if you have people trying to create more Republican districts at the expense of the Democrats, those may become targets. So, it is something that we’ll have to watch.  I don’t have any doubt that there will be continued struggle over these issues, partly based on concern about protecting minority interests, but in part based on partisanship as well.

SW: And so, the next census will get us back into this ball game, I presume?

PS: Absolutely. The two sides, I think, are gearing up—and not really even two sides. Lots and lots of people are gearing up to be participants in the process of deciding what kind of districts will exist for the House of Representatives and in the state legislatures as well. And it’s a rather interesting two- or three-year litigation donnybrook.

SW: So, let’s shift gears and talk about the video games. While I’m thinking of it, when you argue this case in November, it’ll be what number argument in the Supreme Court for you?

PS: Fourteen.

SW: Number fourteen, okay. So, you’ve been involved in this issue for quite a while. How did that start and where are we going?

PS: Well, the work for the video game industry grew out of work that I had been doing with Bruce Ennis back in the 90s, my colleague here at Jenner, who was in that decade the preeminent First Amendment appellate lawyer and had argued, for example, Reno v. ACLU. That’s the case establishing that the Internet would be treated as fully protected speech, and so one of the things that we were known for was work on the application of the First Amendment to new technologies, new methods of delivering content. What happened then was there was a high school shooting in Kentucky that led to a lawsuit claiming that video games, as well as movies, and other things, had caused this young man to shoot some of his classmates.

SW: This was Paducah?

PS: Yes. So, we got involved in that lawsuit representing several of the video game companies, and we started seeing these laws being passed around the country by states trying to regulate distribution to minors of violent video games. So, those cases have now been going on for ten years or so. So far, they’ve all been held unconstitutional.

SW: And it’s purely over breadth? Is it the definitions are too broad and encompass too much speech or is it other things?

PS: No, no. The basic proposition that we rely on in challenging these laws is that there’s no violence exception to the First Amendment.  So, a law that regulates sales of video games, or anything else, based on having violent content is subject to strict scrutiny. It’s not subject to any lesser degree of scrutiny.

SW: So that the violence is not the same as sexuality?

PS: Right. There’s a well-established doctrine that says if something’s obscene, you can’t sell it to anybody, and if something’s not obscene for adults—but sufficiently explicit—that we’ll treat it as obscene for minors, and you can’t sell it to minors. That’s the Ginsberg doctrine. And states have been trying in these cases to extend that Ginsberg doctrine to violence and say the government has a role to play in saying that some things are too violent for kids to see.

The reason I think we’ve succeeded in persuading courts that they just don’t want to go in that direction is that there’s a real difference between sex and violence. Sex is something that we shield kids from and is not part of the preoccupations of people under the age of thirteen anyway. Violence, however, is part of children’s literature. It’s part of children’s imagination. Children wake up with nightmares about monsters when they’re three years old, and then we read them Grimm’s Fairy Tales. There is a real difference between the two in that way. So, if you then say, “Well, we still think some things are too violent for minors,” you have to figure out some way to use the English language to describe the two categories, and it is extremely difficult to figure out a way to accomplish this by law.

Instead, what we have now is a voluntary rating system that the video game industry operates that is very comparable to the voluntary rating system that the movies have. And that works much better because if you have a private sector entity saying, “Here, this game looks to us like an M-rated game instead of a Teen-rated game,” retailers say, “Well, we won’t sell the M-rated games to kids.” It’s not 100 percent effective, but it’s as effective probably as any legal regime would be, and you don’t have all these problems with the government deciding what’s appropriate and then trying to use law and impose penalties on people for misreading the law and disagreeing with the application of some legal definition to a particular piece of content.

SW: The definitional problem, I think, is incurable, right? There’s no way to write a definition that says the roadrunner hitting another cartoon character over the head is not the kind of violence we’re worried about. It’s the AK-47 shooting a rival gang in a video game that we’re trying to prohibit.

PS: It is, I think, insoluble. Part of the problem is there’s violence in Roadrunner. Part of the problem is we want people to see movies about D Day or play games about D Day. A lot of what people object to, I think, in video games is not so much the violence, per say, but that they have characters misbehaving and engaging in conduct that people disapprove of, which is just another way of saying they don’t like the plot. It’s often, in fact, a content issue. It’s not a violence issue.

SW: I guess then it’s also the question of how far does it go? I mean, we all played Clue when we were kids, which was about a murder.

PS: And we all ran around and shot. . . . I don’t know what you did when you were a ten-year-old boy. We did cops and robbers and we played war.

SW: But even in Risk, you’re engaging in war strategy.

PS: Violence is everywhere, and it is in stories of all kinds, some of them uplifting, some of them less than uplifting. It is just not an area that it makes sense for the government to meddle in. It does not end well when they do it. You know the California law at issue in the Supreme Court case, it says you can’t sell a game if it has various types of violent things occur in it, including maiming people, etcetera, and if it appeals to somebody’s deviant or morbid interest in violence. Now, how is anybody who’s making a video game supposed to decide which one of their violent games appeal to a morbid interest and which ones don’t? I mean, it’s just words that don’t give you any information when you actually have to apply them.

SW: Alright. Let’s talk about the Thurgood Marshall Award and Justice Marshall. What does the award mean to you, and what’s your sense of Justice Marshall? Did you get to know him during your clerkship? Did you get to know him subsequently?

PS: Well, obviously anybody fortunate enough to win this award has to just be humbled by the fact that it’s an award first given to Justice Marshall, whom Justice Powell once told me was the most important American of the twentieth century, in his estimation. That was during my clerkship, and Justice Marshall was just down the hall. I got to know him a little, though we didn’t hang out in the Marshall chambers quite as much as the Brennan clerks did. I got to hear a story or two from Justice Marshall to get a sense of him. But a lot of the sense of him you get is from people like Justice Powell, who lived through the post-Brown era in the South and understood how important it was for the South to move past massive resistance and into a period of integration.

What’s been very interesting for me about this whole Lawrence v. Texas experience is because the case has such importance and is so easily analogized to Brown vs. Board of Education, people frequently compare me to the lawyer who did that case. Of course, the comparison is totally inapt when you think about the life that Justice Marshall led and the enormous courage that he exhibited during the 30s and 40s when he was litigating those cases, and driving around those small towns, and getting driven out of small towns, and planning and struggling to get to the point where they had the right case to bring to the Supreme Court. I’ve had a very privileged life by comparison. I think the award that I’m going to receive is a recognition of the entire gay rights movement, and I happen to be in the fortunate position of representing all the struggles and work of a lot of people, many of them working full-time on these issues and sacrificing all the other options they could’ve chosen in their lives. So, it is in some ways a funny feeling to think that I’m the one who gets the recognition for all the people who did all work, including even on itself. The lawyers at Lambda Legal brought the case all the way up through the courts and were full partners, even in the Supreme Court. So, I like to think of it that I will be representing all of those people that worked so hard to get as far as we have. And I look toward a time when there won’t be another civil rights issue that needs to be litigated in this country because the law no longer singles out LGBT folk as second-class citizens.

SW: Now, I guess the last thing is: This is not a detached observation on your part. As a gay man, you have a sense of appreciation of the importance of this issue.

PS: Yes. Not in the same way that I guess people do who are living in small town . When I came out rather late in life, I was already a partner in a law firm in a big city that had every legal protection you could possibly have for gay people. I can’t say that I’ve had a lot of personal experience of legalized discrimination. And the legal profession over the last ten or fifteen years has become extremely open.

SW: But you made the choice for many years not to come out?

PS: Yes, and that’s the way it was for many people of our generation.

SW: Which is in itself a form of discrimination?

PS: Sure. It was partly just a personal misunderstanding of yourself and of your options in life. You could write a whole book about when people come out and why, and I guess people have. Certainly, the world was a lot less welcoming when I was graduating from school than it is now. But it certainly is true, I think, that it was important to the community to have a member of the community arguing . And I was lucky enough to get that chance.

SW: That’s very interesting. There are all kinds of famous and maybe apocryphal stories about Justice Powell having said he never met a gay person, I guess, at the time of Bowers, and obviously that was not the case.

PS: No, it wasn’t the case with respect to many of his clerks, as it turned out. And I don’t know whether he actually said that or didn’t say that. It was long after I had worked there. What, I think, is in many ways more important: By the time he retired, Justice Powell mentioned only one thing he thought he would’ve done differently if he could do it again, and that was his vote in Bowers v. Hardwick. So, I think it was a difficult issue for him in 1986, but one that he came to understand.

SW: And so you’ve spent a fair amount of time now doing work for Lambda Legal and serving as legal counsel?

PS: Yes, and also a lot of work on the board. I’m a co-chair of the national board of directors now, so we do things like raise money. And, simultaneously, I was able to become very active in the American Constitution Society and lots of other things. So, a lot of it, I think, spurred by the notoriety. I think one of the things that it’s done is allowed me to sort of get involved in the gay rights movement and see everything that’s going on and be at some of the meetings where the strategies are being discussed. It’s been very enriching for a private practice lawyer to have those opportunities. And hopefully, we’ll continue to make progress here.

SW: And the firm has been supportive? I mean you’re in a supportive environment?

PS: Jenner is very supportive and has indeed embraced the cause of LGBT civil rights in a big way. Our firm was one of the leaders in that area.

SW: Was there any question about that in taking ? I mean, did you have to . . . ?

PS: I don’t remember any controversy about it.

SW: There was no debate about whether this would hurt the firm or be good for the firm?

PS: No. But you know, five or ten years earlier, there probably would’ve been. This was 2002, 2003. It was not 1992, 1993. It might have been a different conversation even just ten years earlier. We might’ve done it, but it would’ve been different.

SW: All right. I think we’ll stop there. Thank you.


Stephen J. Wermiel

This interview of Paul M. Smith, leading civil rights and First Amendment lawyer, was conducted by Stephen J. Wermiel, chair of the Human Rights editorial board, to honor Smith for receiving the 2010 Thurgood Marshall Award.