Chapter 8

Norma had not wanted to return to Henry McCluskey. Though the lawyer was kind and had found her second child a good home, Norma did not wish to deal with another adoption. She wanted an abortion. But her obstetrician had made clear that abortion was not possible. And so now, in the first month of a new decade, Norma headed back downtown to see McCluskey. He greeted her, and she said, “Oops!” After they laughed, Norma told him that she wanted an abortion and was angry with the law.

McCluskey understood that anger. He was gay in a state where gay sex was illegal.

Months before, McCluskey had filed a suit to fight the sodomy statute in Texas. He had turned to another lawyer, named Linda Coffee, for help. She had told McCluskey that she wished to overturn a second set of laws, too—the four articles of the Texas Penal Code that criminalized abortion. But she needed a plaintiff.

McCluskey told this to Norma. Norma asked what a plaintiff was and he said it was someone who brought a lawsuit.

Norma also asked if becoming a plaintiff would enable her to have an abortion. McCluskey did not know. He called Coffee.

LINDA NELLENE COFFEE was born in Houston on Christmas Day in 1942. After a younger sister was born, the family of four moved to Dallas. There, every Sunday, they prayed at the large Southern Baptist church on Gaston Avenue, where Linda’s grandfather was a deacon.

The church was a hearth, home to more than prayer. It was where little Linda went for Sunday school and softball and choir, an alto in a dress.

Coffee liked the organ; in time, Bach would give her goosebumps. But after watching the band at Stonewall Jackson Elementary march into the school auditorium, she chose at age nine to play the clarinet.

The second-grader’s first choice had been drums. “Something real physical and fun,” says Coffee. Dad had said no. But he said yes to softball; he coached the team. And so, his firstborn played shortstop and then catcher, crouching in mask and Jerry Coleman glove, writing her address in black marker on the back of its pocket: 5711 Anita.

Home on her lawny lane in suburban Dallas, Mary Coffee was too nervous and displeased to watch her daughter play; a girl ought not to squat. The housewife had long envisaged a daughter more like her—neat and conservative and feminine. Mary prettied her house and was at the beauty parlor every week. But her daughter hated housework almost as much as the bonnets her mom had once made her wear. The girl was not girly.

Coffee instead resembled her father, a quiet engineer. She was shy but unafraid; she walked on stilts and killed the scorpion that scared the other girls at Baptist camp. She was absentminded but cerebral. Come high school, she joined the Latin and science clubs, tutored math and took college-level physics. The teachers at Woodrow Wilson High told the Coffees how smart she was. They had but one lament. Says Coffee: “I needed to participate more in class.”

Coffee did not want to. She knew the answers. And she was happy to keep to herself; save Smokey her dog, she had few friends, went on few dates. “When I had to call up some guy to go to a dance or something, it was just awful,” she says. “I hated it!” The teenager preferred to play ball or clarinet, she says—“to do something fun instead of just being a pretty object.”

Coffee was pretty—thin with high cheekbones, her brown hair in a soft bob. She was also “pretty chaste,” she says. After reading a book in high school about a young woman who chooses to have an abortion, it struck her as important for “women to control their fertility.” She wondered why it was acceptable for a man, but not a woman, to have sex before marriage.

Coffee had not yet had a boyfriend when she began her junior year. Her mother was upset and let her know it. “I was beginning to think that our house was too small,” says Coffee. “I needed to be gone.” Linda was seventeen when, in 1960, she left on a student exchange program, bound by steamship from San Francisco to New Zealand.

The students, twenty-eight teens selected by the American Field Service, were meant to represent the U.S., and among the items that Coffee, the lone Southerner, presented to her hosts was a Sears Roebuck catalogue and a Confederate flag. But her nine months abroad opened her eyes to new points of view; Labour governments, she decided, were not all bad. And when in 1961 Coffee enrolled at Rice University, she peered down career paths that her mother—housewife, census taker, secretary—had not taken, like math and medicine and German literature, Coffee studying the last, one summer in Tuebingen, Germany, on a Ford Foundation grant.

None of those careers, however, seemed a good fit. Coffee found the slide rule in calculus cumbersome. Medical school was too expensive and took too many years. And though Coffee loved Goethe and Mann, she hated Kafka and Schiller. Even secretarial work seemed a stretch, she says, after she “failed a typing test miserably.” By graduation, the only job she’d had was as a carhop at Prince of Hamburgers. Mother was displeased. Says Coffee: “I sort of did it to spite her.”

As a last resort, Coffee took the LSAT. High-minded yet practical, she found that the law suited her, and she began to study it at the University of Texas at Austin. Coffee had joined the Human Rights Research Council, a national organization of law students devoted to “the protection of individual and civil liberties,” when, in 1967, she graduated with high honors.

Coffee thought she might go into domestic relations law; she’d interned at a legal aid society in Austin, helping disadvantaged women to get out from bad marriages. But in 1968, few law firms hired women; a woman needed the backing of a man just to rent an apartment. Not one firm made Coffee an offer. She went to work at the Texas Legislative Council, paid six hundred dollars a month to help legislators draft statutes. She found the work boring.

It was then that her mother heard through a lawyer at the Baptist General Convention that Sarah Hughes, the first female federal judge in Texas, wished to hire another clerk.

Hughes was famous for having sworn in President Lyndon Johnson aboard Air Force One. But long before Kennedy was assassinated, Hughes had been known for her feminism—fighting to secure women equal pay and the right to serve on a jury. When Coffee applied for the clerkship and the judge phoned to invite her to the courthouse for an interview, Coffee was overwhelmed. “My voice,” she says, “was shaking.”

Coffee had little need to worry. The Dallas Morning News happened to print the bar results the April morning of her interview, and Hughes let Coffee know that she’d seen her score—87, second highest in the state. The interview went well until the judge asked her would-be clerk which presidential candidate she wished to see elected. Coffee answered Hubert Humphrey but added that Nelson Rockefeller would be fine. “Her tone changed,” says Coffee. “She said she was not interested hiring anyone who didn’t vote Democratic.” Coffee made clear that she understood that politics mattered: “I said, ‘Oh yes!’ ” She got the job and was soon making her way through a backlog of civil motions.

Hughes appreciated Coffee; she told her clerk, says Coffee, that her work “was most satisfactory.” Still, Hughes expected more. Law school had taught Coffee to argue both sides of a case; Hughes wished her clerks to take stances. The judge aspired to legal progress commensurate with the seriousness of the times, and in 1968, America was convulsing—Martin Luther King and Robert Kennedy assassinated, the Democratic National Convention shadowed by violent protest.

Coffee was stirred. But as her clerkship wound down, she again saw, as after law school, all the good jobs going to men. “ ‘Oh, we’d only hire a woman for [debt] collection,’ ” Coffee recalled the firms telling her. “ ‘We’d never hire a woman to be a partner.’ ” Adds Coffee: “Just overt discrimination . . . I was panicked.”

IN APRIL 1969, Coffee’s clerkship was winding down when Henry McCluskey visited her at her desk in the jury room of the federal courthouse.

The two had met years before as young classmates in Sunday school at the church on Gaston. The boy was tall and kind, like all his family, a gentle Baptist. And like Coffee, he kept to himself. “We didn’t have to have friends,” says his older sister Barbara, “because we had each other.”

Like Coffee, too, the young McCluskey was taken with music and sport; he arrived in junior high playing bass fiddle and rooting for the Cowboys. Still, the two had not been in touch since high school when, these many years later, McCluskey reached out. He had heard that Coffee was a lawyer in Dallas just like him, and Coffee assumed, she says, “that he was hoping that I could help him. I obviously knew certain things having worked for a federal judge.”

On this spring day, however, it was McCluskey who tried to help Coffee. She said she needed a job, and he suggested that she buy the law practice of a woman he knew who was getting married. The practice, though, was nothing but collections and defaults, while Coffee—who thought she might want to become a prosecutor—hoped to get a job with the Dallas district attorney, Henry Wade. Says Coffee: “I wanted to get experience trying cases.” She had applied for a job with the DA when McCluskey invited her to dinner with his parents and a friend who knew Wade. The friend liked Coffee, and spoke to Wade about her. The DA then interviewed Coffee and told her that she’d impressed him, too. But the only job he had for a woman, he said, was collecting child support from delinquent dads. Coffee turned it down. She had landed at a small bankruptcy firm in Dallas when McCluskey asked her to help him defend a defrauded man. She did so. He then asked for help on a very different matter.

Sodomy was illegal in Texas. It had been since 1860, the Texas General Laws criminalizing sex that might not result in pregnancy—anal sex, and sex between man or woman and beast. The law became binding in 1879. Ninety years later, McCluskey wished to fight it, and had put an ad in a local gay newspaper seeking a plaintiff. He had found one—a man twice convicted of having consensual oral sex with another man. But McCluskey needed help with his suit.

The case concerned matters of privacy, the fact that police spied on locations where men met for sex. “You have the government in the bedroom,” says Coffee. “I thought, that’s awful! That’s just horrible! They would just sit there watching people using the bathrooms!” Coffee was keen to help her friend. Says Coffee: “I wrote some kind of brief and drafted a complaint for him.”

The suit, Buchanan v. Batchelor, did not mention her name. “I wasn’t about to touch that publicly,” says Coffee. “I would not have enough nerve to even be the counsel of record.”

McCluskey filed suit in May 1969 and appeared before the three-judge federal court in Dallas to argue it.

McCluskey had graduated from Baylor magna cum laude and had been the case notes editor of the Baylor Law Review. But he failed to impress, and a law clerk named Randy Shreve, who knew that Coffee was helping McCluskey, phoned her. “The clerk was desperate,” she recalls with a laugh. “He couldn’t understand what [McCluskey] was saying . . . what his argument was.” The court asked McCluskey for a brief after his oral argument. Coffee wrote the brief and gave it to the clerk who gave it to the court which eventually ruled that, as Coffee suggested, the law was unconstitutional at least with respect to married couples. Says Coffee: “I analyzed it right.”

The work on privacy gratified Coffee in a way that bankruptcy did not. She helped McCluskey over and over again that summer of 1969, a Cyrano content to go unrecognized. The lawyers, meantime, got along well. They had much in common, both twenty-six and single and living with their parents. They began seeing each other outside of work, McCluskey taking Coffee out on what seemed like dates—to the bar at the Adolphus Hotel, to his high school reunion. Their relationship, says Coffee, was soon “somewhere between friendly and more than that.”

That both lawyers were gay went unspoken. But, says Coffee, McCluskey started taking her to places that might communicate what he dared not to—a club for swingers, a gay club for men, a street corner where he alerted her to a man who, he said, was “hustling.” Still, she says, “it seemed that he wanted a straight life.” She adds: “he was having gender—some sort of confusion.”

If Coffee was closeted, she was not confused. She’d upended stereotype from the start, preferring drums to clarinet, math to typing, comfort to fashion, work to the prospect of a family. She’d never had a boyfriend, and retained, she would soon tell a reporter, “a live and let live attitude about marriage.” She added that “we [working women] would like to try it but we just don’t have time for everything at once.”

SEPTEMBER 1969 HAD arrived when Coffee came upon mention, in the Southern Methodist University library, of People v. Belous, a case that only days before had exonerated a California doctor for referring a woman to an illegal abortion provider. Coffee’s mind raced. Here was a ruling that rendered a state abortion law void on grounds that it was constitutionally vague, that it violated the due process clause of the Fourteenth Amendment. Surely the abortion law in Texas was vulnerable, too. “I just thought, my goodness!” recalls Coffee. “The same logic would apply!”

The thought had not occurred to Coffee before. But suddenly it consumed her, the idea, as she later explained, that “process” aside, laws that deprive a person of “some important fundamental liberty”—such as privacy—are in and of themselves impermissible.

Coffee was a feminist, a member of Women for Change and the National Organization for Women and the Women’s Equity Action League. Long mindful that birth control was unreliable at best, and that the illegality of abortion, says Coffee, “seemed to be something that held women back from achieving their full potential,” she now saw that the Texas law enforcing that illegality was weak—a legal relic out of step with the fact, she says, that “if a woman self-aborted, she was guilty of no crime, not even a misdemeanor.”

In a few days, the abortion rights lawyer Roy Lucas would file in New York the first suit against a state abortion law. Coffee told McCluskey over lunch at the Adolphus that she wished to do the same. There was, she said, just one problem: “I couldn’t figure out how I could find a pregnant woman who was willing to come forward.”

Four months later, in January 1970, McCluskey phoned Coffee with word of a woman who’d come to his office wanting an abortion.