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Fighting the Good Fight

This gay-rights champion took his struggle all the way to the Supreme Court

Portrait of William H. Gardner (JD ’59)

By Sally Jarzab

“I took advantage of their outrage and willingness to fight.”
William Gardner

From the start of his long legal career, William H. Gardner (JD ’59) accepted many cases pro bono. The man who once aspired to be a minister but instead followed the family tradition of lawyering always felt a duty to help those in need.

Gardner, 84, is a bit rusty now in recalling the exact details of those early cases, but he’s clear as day about the circumstances that prompted his decades-long mission to defend the rights of gay men. As a young Buffalo lawyer in the 1960s and ’70s, he saw them getting targeted, harassed and hauled into court; being ostracized and persecuted; having few protections and little or no recourse— and it pained him.

“The law was being used purposefully to abuse this particular crowd of people,” he says. “It was horrible, but there seemed to be nothing I could do.” There was no shortage of cases for Gardner to defend—same-sex encounters were outlawed at the time—but the targeted individuals typically wished to avoid any scandal and close the matter discreetly, making it impossible to make a real difference. While Gardner understood their predicament, the litigator in him wanted to fight.

Eventually, that fight played out—twice, in fact—in the form of court battles that would challenge the system, change the law books and shape the course of history. The first instance involved two men charged with consensual sodomy, a case like so many others except that these defendants weren’t about to back down quietly. “I took advantage of their outrage and willingness to fight,” says Gardner, “and I argued that the criminal prohibition of consensual sodomy was unconstitutional.” He lost in city court and again in county court. But in the state appellate court, in 1981, his argument was successful, establishing new and powerful protections for the gay community in New York State.

And yet, Gardner recalls, the harassment continued, with arrests pegged to loitering and solicitation. He noted the inherent contradiction—and injustice—in deeming illegal the pursuit of something that had itself been determined legal, but he needed a case in order to make the argument. When a Buffalo man, nabbed by an undercover police officer while hanging out on a summer night, sought his representation, his opportunity arose. “I said to him, ‘Do you want to fight this? We can go as far as we have to take it.’” As before, the motion was ruled against in city court and in county court, then was successful at the state appellate level. But this time, the district attorney appealed it, and New York v. Uplinger was Washington-bound.

William H. Gardner (JD ’59)

William H. Gardner (JD ’59) 

“Suddenly, I’m taking this issue to the Supreme Court, and now it’s become major news,” says Gardner, who was worried that he might be out of his league. An unexpected phone call from a representative of a large gay-rights group didn’t reassure him. “They wanted me to give up the case to some nationally known constitutional lawyer with more experience,” he recalls. “I felt like I was in high school being chided by the principal.” He agreed to present the choice to his client—who was unwavering in his commitment to Gardner.

Of his nerve-wracking Supreme Court appearance, he says, “I had never been in a situation like this before, and I was worried that I would become unhinged, but I didn’t. I handled it well.” Or well enough, anyway. At one point, he did make an awkward blunder, misunderstanding a technical question issued by then-Associate Justice William Rehnquist. “But the bottom line is that they issued an order dismissing the case,” amounting to a practical victory for Gardner, his client and the gay community.

“For the purposes of our state, I had solved the problem. We did not get any more of these publicity-grabbing arrests, and I had no more need to spend a lot of time going to court for guys who were picked up in the park,” says Gardner. “I went back and put my nose to the grindstone and did my regular caseload. End of story.”

Of course, that’s not really where the story ends, not for the cause or for the man himself. Gay-rights advocacy has come a long way since that 1984 Supreme Court case. Gardner went on to maintain a solid career as a senior partner with the law firm Hodgson Russ, regularly volunteer his service with organizations such as the Legal Aid Bureau, and live out his life as a devoted husband and father. Now retired and widowed, he has the opportunity to reflect on what he saw then—and still sees now—as a crusade for justice. Uncertainties rise up, but regrets do not.

“I was straddling a barbed wire fence, trying to do good and yet hoping not to cause problems in a time and place where it could be very difficult,” he muses. “I’m not sure I always did what I should have. But from the day I started taking free cases, this whole process was, I think in retrospect, simply doing the one thing I could do, which was to fight the oppression. So I did good, and I’m glad.”