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University of Chicago Law Review

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1733

Abstract

I’m not sure I’ll ever live it down. I actually said—out loud, to his face, a full ten minutes into our very first conversation—“Holy smokes, you’re Larry Tribe!” I was in Cambridge that day as a newly admitted student. Somehow, inexplicably (it’s not that big of a campus), I got lost. Very lost. Fortunately, a passerby professor took mercy and steered me to his office. In a bid to regain my composure, and to seem like a plausible future law student, I jumped straight to explaining why I was there: I wanted to be a civil rights lawyer. To prove it, I recounted a paper I’d just delivered, entitled “Sodomy and the Supremes.” I brightly added that the hero of this tale—a certain Larry Tribe—must be a colleague of his. “Oh,” he said gently, “that’s me.” To which I replied . . . well, you already know.

In my defense, “holy smokes” is a justified reaction to Laurence H. Tribe. By virtually any measure, he ranks among the greatest and most influential legal scholars and advocates in U.S. history. He has written constitutions into existence. He has ad-vised world leaders on matters of historic import. And, in exploring the U.S. Constitution, he has mapped “constellations where the rest of us saw only a random collection of stars.”

Among his towering achievements—perhaps first among them, in my (admittedly biased) view—stand Tribe’s contributions to the early and continuing progress of LGBTQ rights in the United States. The story of that struggle is vast. Its cast of characters numbers in the millions: people from all walks of life who reshaped society from the top down and the bottom up and the closet out. As Tribe is quick to emphasize, most who have fought for LGBTQ rights lacked the privilege and security he enjoyed in doing so; some were literally fighting for their lives, their safety, their homes, or their jobs, while many others fought for the most basic opportunities to flourish and form families. It would be mistaken and reductionist to address this history without emphasizing the critically important role that so many people, of all sexual orientations and gender identities, played in the story.

Yet there is no denying the special significance of Tribe’s role in the legal campaign for LGBTQ civil rights. From the outset, this has been one of his main projects as a scholar and advocate. And a review of his writings reveals a fascinating tale. At least as early as 1978, Tribe intuitively grasped the profound connection between same-sex intimacy and the realization of personal identity. He also perceived that the Constitution protected gays and lesbians from laws that made their existence a crime. But he recognized that a decisive majority of the Supreme Court lacked such vision. This tension drove decades of generative and intensely strategic advocacy. Tribe reached new heights of brilliance in articulating principles designed to persuade a conservative Court to protect the rights of LGBTQ people.

By design, however, these frameworks lacked something essential: a grounding in the integrity and humanity of LGBTQ identity, experience, and relationships. Even as Tribe’s deep reservoir of empathy powered this constitutional project—and shone through in his relationships with LGBTQ friends and students—he kept it carefully closeted in his legal filings. There, he adhered to broad, universal claims about the meaning of free speech, privacy, dignity, and equality. At stake were the rights of all Americans, he insisted, not just LGBTQ people and their allies (whose presence and collective stake in the outcome were downplayed in service of litigation strategy). Only after substantial judicial and popular evolution did Tribe finally adopt a different approach, submitting an amicus brief in Lawrence v. Texas that spoke in far more particularized, meaningful ways about the rights of LGBTQ people—and the constitutional sin that rendered them outlaws. This brief hearkened back to Tribe’s earliest exploration of the rights of “homosexuals.” It also marked a pivot toward his pathmarking exploration of the liberty/equality dyad that would drive the case for marriage equality through United States v. Windsor and Obergefell v. Hodges.

In this short Essay, I’ll survey Tribe’s fight for LGBTQ rights, drawing on his early writings and several interviews with him conducted in March and April 2021.

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