Fay Clayton, the Chicago lawyer who is head counsel for the National Organization for Women in its long-running case against abortion protesters, arrived at her law office a little after 9 a.m. last Monday. She was drinking a cup of coffee when the telephone rang.
It was the clerk of the U.S. Supreme Court, telling Clayton that the court had reversed a lower court’s dismissal of the suit.
“I was so stunned, I had to think for a moment, `Is that good or bad?’
“I ran out into the hallway and screamed, `We won!’ Everyone came running out, and then I thought, `What if it’s a crank call?’ So we called back, to make sure it was real.”
Clayton argued before the Supreme Court in December that abortion rights advocates should be able to use a federal racketeering law to sue abortion protesters. She argued that acts of violence and intimidation by protesters in their attempt to shut down abortion clinics violate the Racketeer Influenced and Corrupt Organizations Act. Defendants of the nationwide class-action suit include anti-abortion groups such as Operation Rescue and Pro-Life Action League.
The case went to the Supreme Court after being thrown out first by a U.S. District Court and then by the U.S. Court of Appeals.
Last Monday’s unanimous decision reversing the lower courts’ decision was a major victory for NOW, reaping front-page headlines and spotlighting NOW President Patricia Ireland.
“What this does is give us the right to go to trial,” Ireland said in a telephone interview Tuesday from Washington, D.C. The Supreme Court’s decision means the case now goes back to the U.S. District Court, where it was first filed in 1986. “I’m looking forward to a very long relationship with Fay,” Ireland said.
Fay Clayton is hardly a household name. In fact, after her appearance before the Supreme Court in December, The Washington Post described her as “a little-known advocate who turned to law as a second career.”
But among her peers, she has a reputation as a powerhouse attorney who combines a fierce commitment to the rights of women and other minorities with a hard-driving legal skill.
She won a $239,000 settlement for a black couple who had been denied a home mortgage from an Oak Park bank; participated in a successful class-action suit against the Chicago Police Department for conducting strip searches of women arrested for minor offenses; and won a six-figure settlement for a female lawyer who was forced to leave her law firm when she married one of its partners.
“She’s never been afraid to take on unpopular causes, including tackling the legal profession, like she did in my case,” says Molly Lien, the Chicago lawyer whose firm wanted to get rid of her when she married. “She’s compassionate, caring and very tough.”
“She’s very bright and a very involved person, especially in matters involving women and the law,” says Judge Ilana Rovner of the U.S. Court of Appeals.
“It was lucky for me that I was arguing on her side,” said Miguel A. Estrada, assistant to the solicitor general, who supported the NOW case before the Supreme Court. “I have seen many oral arguments in the Supreme Court, and she was far and away in the very top-notch (group).”
“We were all in awe of what she did,” Ireland said.
Entered law inadvertently
The 48-year-old Clayton, a slight woman with reddish brown hair who wears wire-rim glasses and little makeup, grew up on a New Jersey farm (“grain, potatoes, wheat, corn and soybeans-I could drive a tractor when I was 6”), the oldest of five children. She married when she was 18 and entered the field of law inadvertently.
“It was the ’60s, we were all in a hurry to get married and have babies,” she said recently, sitting in her 17th-floor office at the law firm of Robinson Curley & Clayton, of which she is a founding partner along with colleagues Ellen Robinson and Philip Curley.
“I wanted to be a housewife and have babies. I found out I liked the babies, but I didn’t like being a housewife. I hated cooking. I had these (three) lovely children, but I was unhappy and I didn’t know why until I got involved in the women’s movement.”
She had married her high-school math teacher when he followed her to Florida, where she was in the charter class of the New College in Sarasota. They moved to the Chicago area after she graduated.
Longed for more
Clayton began teaching in a Montessori preschool, but there was still the nagging feeling that she wanted more.
She decided to give law school a try, and in 1975 enrolled in Chicago-Kent College of Law.
“I went to school nights, taught in the morning, and in the afternoons, I played with my own kids and studied. … Was it hard? No, for an old lady who is raising kids and teaching preschool, going to law school is a piece of cake. You already know how to do 30 things at once.”
“She was one of the most extraordinarily lively students I ever had,” says Richard Conviser, one of her professors.
“She stood out as being exceptionally bright and creative, but to be able to be a good lawyer, you have to be extremely articulate, and she had that also. You could tell when she was a student that if anyone could do something like this (the recent Supreme Court case), Fay would be the one.”
Fellow lawyer and close friend Carol Johnson also entered Chicago-Kent in 1975. “We had an elaborate transportation system worked out,” Johnson says. “Between us, we had five children, and we’d all load into a car, drive (to the city), and meet our husbands and they’d take the car and the children home. Then we’d take the Illinois Central home at night.”
The bathroom rights issue
One of the issues that Johnson and Clayton took action on at Chicago-Kent were women’s bathroom rights.
“There were two bathrooms for men and none for women on the third floor,” Johnson said. “We had been riled by other things we saw as sexist, and decided to take issue. Fay was the ringleader. We started sneaking in, doing things like stringing up clotheslines and hanging pantyhose. We bought daisies and put them in the urinals. Relatively quickly, we got a call (from an administrator) saying they gave up, they would make one of the washrooms for women. We had a ribbon-cutting ceremony.”
Clayton graduated in 1978, No. 1 in her class of almost 200, and went to work for the law firm of Sachnoff Weaver & Rubenstein, where she had clerked while a student. She was made a partner in 1982.
The same year, her marriage ended. In 1987 she married Lowell Sachnoff, top partner in her law firm.
“He hadn’t even wanted to hire me; one of the other partners told me later that he had persuaded (Sachnoff) to take a chance on this older (31) woman. And then he could never remember my name, he was always calling me LuAnn or something else. So it was pretty funny when Cupid struck,” she said.
“But when we married, I knew I had to leave the firm. I was afraid I would be Mrs. Lowell Sachnoff, and I had worked too hard for my individuality to have to worry about that. So I left with a great deal of sadness.”
After a three-year stint with Davis, Miner, Barnhill & Galland, she hooked up with Robinson, a colleague and friend, and Curley in 1989. The firm has now grown to 12, including eight women.
Robinson recalls that when Clayton came to the firm, their work was nearly 100 percent insurance litigation.
“She was already involved with this NOW case, and she made it clear that she felt very strongly about it,” Robinson said.
Clayton’s dedication to minority and women’s rights also extends to her wallet. She makes substantial donations to organizations such as the Chicago Foundation for Women, for which she created a special fund in 1990 requiring a minimum contribution of $50,000. “She’s continued to make substantial gifts, and she also does our legal services pro bono,” says Barbara Dillard, foundation vice chair.
`Thrill of a legal career’
For her part, Clayton says arguing before the Supreme Court “is certainly the thrill of a legal career.”
She was initially brought into the case in 1986 as a local counsel “and normally, that’s very perfunctory,” Ireland said. “I had the lead counsel’s role (at the time) … but I was increasingly taken with her mind and her grasp of the overall, big picture and how she thought we should proceed. So she very quickly became our lead counsel.” (Molly Yard was then president of NOW.)
“Even if it had been a boring case, going to the Supreme Court would have been an incredible experience,” Clayton said. “But this was such an important issue to me, as a woman, on a personal basis. I’d go to bed at night, and be thinking, `We’ve got to stop these terrorists.’ I lived on adrenaline for months, my best time for working was between 2 and 5 a.m.
“When I walked in there finally-it’s awesome. It was like being in church. It feels sacred.”
She didn’t expect such a speedy decision. The court had until July 4. A few days before that phone call came, she had said, “All we can do is cross our fingers and hold our breaths. . . . I don’t know how they let you know these things. I hope they call me. I hope I’m at work. I hope I don’t hear it on the radio.”
There was champagne the night of the decision. “It (the decision) seemed extra strong because it was so speedy.”
What’s next?
“I have a big backlog here on my desk that I have to get through.
“And now we can have a trial” suing abortion foes who use violent methods for violating the racketeering law. “I would hope the trial will start within the year.”
