Critics of Jeff Sessions’s LGBT case don’t know their history (or his)

In two historical hit pieces that somehow appeared on the same day, CNN’s Andrew Kaczynski and the “New York Daily News’s” Chris Sommerfeldt criticize then-Alabama Attorney General Jeff Sessions for his response to a planned meeting of the Southeastern Lesbian, Gay, Bisexual College Conference at the University of Alabama in 1996.

{mosads}For his part, Sommerfeldt somewhat breathlessly writes that Sessions “went several extra miles” in trying to block the meeting, which appeared to violate a 1992 Alabama law. Kaczynski says he looked at “contemporaneous press accounts and legal filings,” while Sommerfeldt cites “unearthed reports.”

As far as Alabama history goes, Sessions took office as Attorney General in January 1995, after having been elected in November 1994. Anything that happened before that happened on the watch of Sessions’s Democratic predecessor Jimmy Evans.

More generally, neither Kaczynski nor Sommerfeldt acknowledge that the federal Defense of Marriage Act became law in September 1996, after passing both houses of Congress with veto-proof majorities. The bill was passed by a 432-65 majority in the House and an 85-14 majority in the Senate.

Those veto-proof majorities included every member of the Alabama delegation; both Alabama Senators Howell Heflin (D) and Richard Shelby (R) and all seven Representatives, four of whom were Democrats (Bevill, Browder, Cramer, and Hilliard), voted for the bill.

Only Kaczynski thinks it worth saying that Alabama’s 1992 law made it illegal for public universities in the state to provide funding to any group that promoted “actions prohibited by (the State’s) sodomy and sexual misconduct laws.”

When that law was passed, the Supreme Court’s 2003 decision in Lawrence v. Texas, which invalidated the Texas law prohibiting sexual conduct between individuals of the same sex, and the court’s application of Casey’s “sweet mysteries of life” to same-sex sodomy statutes were years in the future. Rather, Bowers v. Hardwick (1986) was still the law.

Put simply, Kaczynski and Sommerfeldt both judge Sessions’ conduct by using hindsight instead of evaluating it under the then-prevailing legal standards.

Moreover, the U.S. district court opinion that both Kaczynski and Sommerfeldt link to show that the named State defendant is Sessions’s predecessor, Jimmy Evans. The State attorneys for Evans (Mandell and Turner) were in the Alabama attorney general’s office under Evans, but were no longer there in 1996 when the district court ruled.

In short, Sessions inherited a losing decision that his predecessor handled. He had to think about what to do about a decision striking down a law to which, as Sessions noted, the Legislature “gave serious thought trying to craft a statute that passed muster.”

As Sessions said, it is the attorney general’s job to “defend the laws of the Legislature.” Whenever the State loses in the trial court, it looks at its options and decides whether an appeal is a reasonable course of action. Kaczynski notes that the State pursued an unsuccessful appeal.

Another option would have been, as Sessions also said, “to evaluate whether or not there’s anything we can do with the university at this point.”

Could the 1992 law be amended to satisfy the court’s concerns? Questions like those would naturally have been discussed by Evans’ office, just as Sessions did.

John J. Park Jr. is of counsel for Strickland Brockington Lewis.

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