A lot has changed in the field of sexual orientation and the law since Jane Schacter started teaching the subject in 1991. • “It was just a completely different time,” says Schacter, who began her academic career at the University of Wisconsin Law School and later taught at the University of Michigan Law School. She joined Stanford Law in 2006 and is now the William Nelson Cromwell Professor of Law.

Schacter explains that in the early 1990s there were green shoots of progress signaling some shift toward equality, but each was met with resistance. For example, she recalls that during the 1992 presidential campaign, candidate Bill Clinton “somewhat casually promised” that he would lift the ban on gays serving in the military. And then in 1993, the Supreme Court of Hawaii issued a ruling paving the way to legalize same-sex marriage in that state.

“After Clinton was sworn in, he took steps to end the ban on gays in the military—and all hell broke loose. Then, a few months later came this marriage case from Hawaii. When it hit the newswire, it was like someone had thrown oil on a fire,” says Schacter, describing the era of backlash that quickly followed. “Apart from a few wins, like the Vermont Supreme Court’s decision affirming rights for same-sex couples, from 1993 to 2003 there was very little progress forward and some very big steps backward.”

During that period, over 40 states preemptively passed laws prohibiting same-sex marriage. In 1996, Congress enacted the Defense of Marriage Act, which President Clinton signed. Meanwhile, instead of lifting the military ban, the Clinton administration brokered the compromise of “Don’t Ask, Don’t Tell,” which was a step toward equality but actually codified discrimination in the military for the first time—meaning that Congress, and not just executive action, would be required to lift the ban.

“So soon after I started teaching, the two big issues in the LGBT area were military service and marriage. It was somewhat ironic that a progressive social movement would focus on two mainstays of traditional values,” says Schacter, who clerked, practiced at Hill & Barlow in Boston for four years, and spent two years in government service as an assistant attorney general in Massachusetts before teaching.

And while sexual orientation and the law was an important subject to Schacter on a personal level, she was drawn to it primarily because she saw an opportunity to fill a void and help create a body of scholarship in the relatively new field.

“When I moved into academia, I told law schools that I wanted to research and work on these issues because there were very few people doing so and because they stood at the intersection of my interests in constitutional law and legislative process,” she says.

IT WAS DURING THIS PERIOD OF INTENSE ACTIVITY IN COURTS AND LEGISLATURES that Schacter started to develop a reputation as one of the first legal scholars in the new field of sexual orientation and the law. Focusing on this area, just as groundbreaking legislative and judicial change was taking shape, gave Schacter both a ringside seat to that change—and the opportunity to make keen observations and insights as new law was developing.

“Jane Schacter’s work on sexual orientation and the law has influenced the entire field. Perhaps because she began her scholarly career writing about popular democracy and about statutory interpretation, she has been uniquely well situated to write not just about the constitutional developments but also about how those developments intersect with popular movements and the legislative process,” says Pamela Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law and co-director of Stanford’s Supreme Court Litigation Clinic.

Schacter’s research tracks closely with the important issues in the field from 1992 through today.

In “Courts and the Politics of Backlash: Marriage Equality Litigation, Then and Now” (Southern California Law Review, 2009), she took stock of the momentous decisions made by state courts in Hawaii, Massachusetts, and California, looking at the history of interracial marriage and the difference in popular and political reaction to the two civil rights causes.

In “Ely at the Altar: Political Process Theory Through the Lens of the Marriage Debate” (Michigan Law Review, 2011), she examined the work of former SLS Dean John Hart Ely and considered his “political process theory” in relation to the intensifying same-sex marriage debate. She called for “a more substantive and nuanced conception of democratic equality, as well as a more realistic institutional understanding of courts and the political process.”

In “Unequal Inequalities? Poverty, Sexual Orientation, and the Dynamics of Constitutional Law” (Utah Law Review, 2014), she juxtaposed the successes of recent LGBT rights wins for privacy and marriage equality with the lack of a constitutional movement for the poor since the 1960s. She concluded that the contrast in the two movements underscores the ways that politics and “public opinion can shape judicial decision making; the increasingly significant role of state courts in forging constitutional norms; and both the failures and the fading of the traditional tiers of equal protection scrutiny.”

In “Obergefell ’s Audiences” (Ohio State Law Journal, 2016), she looked at the Supreme Court’s historic marriage equality case, Obergefell v. Hodges, noting the importance of the case and how it “resolved one of the most high-profile social and cultural debates of the day” and “reflected in self-conscious fashion on the very purpose of a constitution.” She dug deeper, looking at how the opinion was written for both the legal audience and the public audience and how the multiple audiences, and awareness of them, might have shaped the opinion.

All of these facets of Schacter’s scholarship come together in Cases and Materials on Sexuality, Gender Identity, and the Law (2016), now in its sixth edition. Co-authored with Carlos Ball, Douglas NeJaime, and William Rubenstein, the casebook—and Schacter’s involvement in it—can be traced back to her first year teaching and her earliest journal article.

“I remember trying to collect some syllabi in the early 1990s, and it was a challenge. Most of the people who were teaching it were practitioners, including Bill Rubenstein, who published the first casebook on the subject in 1993,” she recalls. Rubenstein invited Schacter to co-edit the casebook for the third edition, Cases and Materials on Sexual Orientation and the Law (2007), and she has been part of the team ever since.

“Her scholarship is wide-ranging and brilliant,” says Rubenstein, now the Sidley Austin Professor of Law at Harvard Law School. “The parts that considered sexual orientation law placed the issues in the field in broader contexts, enabling linkages across categories and to larger theoretical debates. Jane’s efforts have, not surprisingly, kept the casebook fresh, pertinent, and precise across many significant subsequent developments and editions.”

“The parts that considered sexual orientation law placed the issues in the field in broader contexts, enabling linkages across categories and to larger theoretical debates. Jane’s efforts have, not surprisingly, kept the casebook fresh, pertinent, and precise across many significant subsequent developments and editions.”

––Bill Rubenstein, Harvard Law School

Talking in her office at Stanford, piles of books and files covering her desk, Schacter rattles off Supreme Court cases marking LGBT civil rights victories: Romer v. Evans in 1996 overturning Colorado’s statewide initiative that had tried to block the passage of anti-discrimination laws covering sexual orientation; Lawrence v. Texas in 2003 striking down and invalidating sodomy bans; United States v. Windsor in 2013 striking down the Defense of Marriage Act; and Obergefell v. Hodges in 2015 legalizing same-sex marriage nationwide. She also emphasizes the importance of the 2010 repeal of Don’t Ask, Don’t Tell during the Obama administration.

Schacter notes that during her career, progress for LGBT rights has been dramatic, as have changes in public opinion. Those shifts have been reflected in her classes too: Her seminar on sexual orientation and the law is usually oversubscribed. But over the years, the scope of the topic as well as students’ prior exposure to some of the issues have also changed.

“The most striking change is in the other classes I teach, especially constitutional law. Students are much more well-versed in these issues and a broader swath of students are interested in the subject now than in the early 1990s. For many of them, the marriage equality ruling was the most dramatic civil rights ruling of their lives, so they are very interested in it and have a lot to say on the subject,” she says.

The next chapter of the marriage debate, Schacter suggests, will focus on religious liberty claims by those opposed to same-sex marriage. The Supreme Court has a case this term on whether a baker in Colorado has a constitutionally protected right not to make a wedding cake for a same-sex couple, even though the non-discrimination law in that state bars discrimination based on sexual orientation in public accommodations.

And there are still other big legal issues to resolve. For example, fewer than half the states have laws, like the one applied to the Colorado baker, that explicitly ban discrimination against LGBT people in employment, housing, and public accommodations.

“As they say, in most states, a gay person can get married on Sunday and fired on Monday,” says Schacter.

She notes that in the last few years, transgender rights have come to the fore, with some dramatic back and forth between the Obama and Trump presidencies on direction. The ability of qualified transgender individuals to serve in the military is a major current flashpoint for this debate.

Many people compare the fight for civil rights on the basis of sexual orientation with the struggle for racial equality. Schacter notes there are both differences and similarities but she observes that in both realms legal victories are not, on their own, enough to guarantee justice.

“Think about it—decades after courts and legislatures provided for legal equality based on race, battles over what constitutes meaningful equality continue. One of the ways to think about sexual orientation law is that the fight is still going on to get some of those basics established. But even once that happens, if it happens fully, what we see from the examples of both race and gender is that formal equality is a beginning, not an end.” SL