Appealing For Justice
New Dubofsky Bio A Compelling Read
By Tom Korson
Special to the GPHN
In 1996, the Supreme Court of the United States issued a landmark ruling in the case of Romer v. Evans.
The case was argued by the woman who is the subject of a superb new book, Appealing for Justice: One Colorado Lawyer, Four Decades, And the Landmark Gay-Rights Case: Romer v. Evans, by former Denver City Councilwoman Susan Casey. Jean Dubofsky, the first woman appointed to the Colorado Supreme Court, is her compelling subject.
In the early 1990s, Aspen, Boulder, and Denver enacted anti-discrimination ordinances designed to protect gays and lesbians. Opponents of those measures placed a constitutional amendment on the ballot banning gays and lesbians from seeking such protections. To the surprise of many, Amendment 2, as it was known, passed, attracting nationwide attention. Dubofsky was the pro bono attorney assigned to challenge it. The case was litigated in both Colorado and the United States Supreme Court, resulting in a resounding victory for Dubofsky’s side at every step of the way.
Casey’s book is an illuminating, highly valuable narrative of the tumultuous changes in our society between 1956 and 1996. It is seen in the life of one person from an ordinary background who became highly successful in her chosen legal and judicial profession.
It all started when Jean Eberhart was a senior at Topeka High School. Her home economics teacher insisted that she apply for the Betty Crocker Homemaker Award. To her surprise, Jean won not only at the state level, but at the national level as well. Sen. Frank Carlson was impressed by Jean’s success and he invited her to be an intern in his office in Washington.
Eberhart grew up in Republican Kansas, and Sen. Carlson was a Republican. But as a young woman working and living in Washington, she became acquainted with other young people on the liberal Democratic side. She eventually came to the attention of Sen. Walter Mondale of Minnesota, a Democrat and a protégé of then-Vice President Hubert Humphrey.
The tragedy of the assassination of Martin Luther King, Jr., in April, 1968, and the subsequent destruction in several cities, including our nation’s capital, made a deep, searing impression on young idealists like Eberhart. She had also begun a relationship with her future husband, Frank Dubofsky. As Casey writes, “They were both intimately involved with issues of justice, on the front lines of protests and marches, and with landmark legislation. Frank was the more overt political activist. He led campus reform efforts at Georgetown Law, participated in Dr. King’s March on Washington, and organized protests for the 1968 Democratic convention in Chicago.”
The couple could have stayed in Washington, but they yearned for other experiences. They found substantial challenges in the area of Palm Beach, Florida. It had a posh town center, having been founded in the early 20th century as a resort and playground for the rich and famous. Only a few miles inland were thousands of the poorest of America’s poor: migrant laborers who harvested crops, picked citrus, and enabled the agricultural interests in South Florida to thrive.
The Dubofskys applied for work in a legal services program arising from President Lyndon B. Johnson’s War on Poverty. They landed a job with South Florida Migrant Legal Services. Jean Dubofsky filed a lawsuit alleging that the migrant workers were actually enslaved – the first slavery case in the United States since the post-Civil War era.
How did the judge treat this assertive young woman lawyer? He wanted to know whether her husband was in the courtroom! Dubofsky won an injunction, which greatly displeased the local powers that be.
The Dubofskys moved on, to Colorado Rural Legal Services, in Boulder. She later became the campaign manager for Democrat J.D. MacFarlane’s 1974 successful campaign for Attorney General, and MacFarlane chose her to be his deputy attorney general. MacFarlane, who has lived in Park Hill for many years, called Dubofsky “the smartest lawyer I ever known… she was on the right side of things…”
By the late 1970s, activists were advocating for women to occupy important leadership positions, so they hoped that Gov. Dick Lamm would appoint a woman to a Supreme Court vacancy. And so, at the age of 37, Dubofsky became the first woman on the Colorado Supreme Court.
Then followed a period of great unpleasantness, because opponents of the governor and of Dubofsky made relentless attacks against her selection, claiming that she was too young and inexperienced. Many, including Dubofsky, called it a witch hunt. Dubofsky knew that the accusations about political influence in her selection were mere proxies for political animus against Gov. Lamm. Fortunately, her colleagues on the Supreme Court welcomed her, quickly treating her as one of them.
Dubofsky left the Supreme Court after seven years to begin a new chapter. Controversy again swirled around her application for a full-time faculty position at the University of Colorado Law School. Eventually, the faculty declined to appoint her, leaving a bitter taste among her many supporters.
The resilient Dubofsky opened her own law office, handling important cases on behalf of injured workers and others.
After Amendment 2 passed, along came Richard Evans, the lead plaintiff in Romer v. Evans. Dubofsky, who was not a member of the LGBTQ community, joined a group of gay rights activists. The victory they won paved the way for other critical decisions including, of course, last year’s decision by the Supreme Court legalizing gay marriage.
Appealing for Justice, published by Gilpin Park Press, is available at area bookstores.
Tom Korson and his wife, Mary Mullarkey, have lived in Park Hill since 1973. Mullarkey, the first woman to serve as Chief Justice of the Colorado Supreme Court, was appointed by Gov. Romer to the vacancy created by the 1987 resignation of Jean Dubofsky. Mullarkey served on the Court for 23 years, 12 as Chief Justice before her retirement in 2010. Korson publishes a satirical blog, apocryphalpress.com, which he promises is “your best source for the news that didn’t happen.”