The Buffalo Law Experience

OUTLaw Dinner honors a fighter for gay dignity

William H. Gardner ’59, Patrick O'Brien '17 and Dan Kuhr

A gay-rights pioneer told his story of two major court victories – ones that advanced the legal rights and human dignity of gay and lesbian people – at the annual dinner of OUTLaw, the Law School’s LGBTQ student organization.

William H. Gardner ’59, a retired senior partner with the Buffalo-based law firm Hodgson Russ, spoke as he accepted the group’s award for distinguished service. The March 10 event was held in the Hotel @ the Lafayette, in downtown Buffalo.

After opening remarks by OUTLaw President Patrick J. O’Brien ’17 and the organization’s advisers, Associate Professor Michael Boucai and Lisa M. Patterson, associate dean for career services, the honoree was introduced by David C. Schopp ’82, executive director of the Legal Aid Bureau of Buffalo.

Gardner spent nearly three decades on Legal Aid’s board of directors. At a time when there was a severe backlog of appeals to be filed, Schopp said, Gardner stepped in to solicit attorneys to file the appeals pro bono, organized their training, and personally wrote and filed more than 50 appeals. “It’s an astounding testament to the type of person he is,” Schopp said. “Anyone who has worked with Bill knows he will do the job and do it incredibly well.”

Gardner’s remarks brought his listeners back to the 1970s and ’80s, a time when police in Buffalo and elsewhere routinely arrested gay men and lesbians. “I was seeing people in run-down, abandoned properties – gay people gathering together with cook fires and having the camaraderie they wanted as a group – harassed routinely by the Buffalo police and other members of the citizenry for the outcasts they were,” he said.

The tools of this harassment were a law banning consensual sodomy and an anti-loitering law. As a young lawyer at Hodgson Russ, he got permission to take on some of these cases pro bono. “Given my responsive horror to the attitudes of the authorities against the gay population in Buffalo, the only way I figured we could overcome that was to mount a crusade to overrule the laws that they were enforcing so vigorously,” he said.

“I let various folks and gay organizations know that if they brought me people, I would represent them for free. If they wanted to make a case and fight the system, I was ready to do that. I was confident that sooner or later someone would show up who wanted to fight and not be a victim.”

His first major victory came in 1980, when he represented two women who were charged with consensual sodomy. Gardner noted that the newspapers routinely published the names of those arrested for such offenses, putting their reputations and their jobs at risk. His motion in the case argued that the law was unconstitutional. He lost in Buffalo City Court. He lost in Erie County Court. But on appeal to the state Court of Appeals, he won, and the law was thrown out. “For the first time in New York,” he said, “it became established that consensual sexual love between homosexuals was constitutionally protected.”

The second case, decided in 1984, involved a teacher in the Buffalo city schools who, on a hot summer night on North Street, invited a nervous young man back to his apartment for a dalliance. It was a trap, and the police moved in. The teacher called Gardner and said he wanted to fight the charge of loitering for the purpose of soliciting sodomy. The case took the same path: a loss in City Court and in County Court, then an appeal to the state’s highest court. “I argued that you couldn’t have a situation where consensual sodomy was OK but inviting someone home to have consensual sodomy was illegal,” Gardner said. He won the case, but the district attorney appealed to the U.S. Supreme Court, which agreed to hear the case.

“I will never to my dying day remember a circumstance when I was more frightened, more tense, than I was that day” in Washington, Gardner said. He made his argument. Chief Justice William Rehnquist asked him a technical question, and repeated it, but it made no sense to the Buffalo lawyer. “I really thought I was out of my league,” he said.

But the result was a victory. The court noted that the DA’s claim that the anti-loitering law was constitutional made no reference to the state Court of Appeals’ striking down the consensual sodomy law. It made no decision. “The net result was a draw,” Gardner said. “What it meant was that the Albany ruling stood and people would not be arrested for either offense.”

He closed with a plea to the current and future lawyers in the room: “I hope that all of you who are so inclined will come to the defense of all of us who need your defense.”