Then Comes Marriage (39 page)

By opening with a reference to Judge Wisdom, I was obviously drawing a link between the historic struggle of civil rights for African Americans and the current struggle for the rights of gay people. And I'm pretty sure that the judges understood exactly what I meant.

Much of the argument at the Fifth Circuit focused on the 1972 case of
Baker
v.
Nelson
, in which the Minnesota Supreme Court had ruled that a law restricting marriage to opposite-sex couples was constitutional, and the Supreme Court had dismissed the appeal as not even raising a substantial issue. When Judge Smith brought up that decision, I responded with the following:

ME
: The world was a very different place in 1972 when
Baker
was decided. . . . There has certainly been a sea change not only in the law, but in the way gay people live in our society. In 1972, . . . [i]f they wanted to keep a job or be civil to their neighbors, most gay people lived in the closet. We have a very different world today, where there are gay people, like my clients, living openly with their children. . . .

JUDGE SMITH
: Why do you suppose, though, that in light of the specific reasoning and holding in
Baker
, the Supreme Court said . . . there's no problem here, nothing to see here.

ME
: Why did they say that in 1972?

JUDGE SMITH
: Yeah.

ME
: Because times can blind, Your Honor. In 1972, . . . it was criminal to be gay in most states in this country.

“Times can blind.” No matter how many times or how many ways I used Justice Kennedy's words, it would never be enough. I felt particularly vindicated when, during the oral argument in the Texas case that followed ours, Judge Graves joked, “All this talk about
Baker
and the seventies is making me nostalgic for my Afro and my 8-track tapes.” It's hard to imagine a better way to illustrate how dramatically the times had changed than that.

At one point during my argument, Judge Smith brought up the legacy of
Windsor
, which led to the following humorous exchange:

JUDGE SMITH
: What do you think it is in
Windsor
, and of course I know you're intimately familiar with
Windsor
because you tried that case and argued that case.

ME
: I've heard of the case, Your Honor. Yes.

[LAUGHTER]

JUDGE SMITH
: And congratulations to you for your good work there.

This led Judge Smith to ask me why I believed that the decision in
Windsor
dictated a pro-equality ruling at the Fifth Circuit. I had spent a lot of time thinking about why so many courts had struck down bans on marriages between gay couples in so many states in the wake of
Windsor
, so I answered:

I don't often find myself agreeing with Justice Scalia on this issue, in this area, but here I have to say I agree with him completely. While the holding of
Windsor
clearly does not apply to the right of couples to marry under state law under the Fourteenth Amendment, the logic of
Windsor
does. Because the logic of
Windsor
. . . says that gay people have dignity that's equal to everyone else. And once you accept that gay people have the same kind, are equal to everyone else, then all these reasons really make no sense. That's why you're seeing this . . . enormous groundswell in the federal courts. Not because it's a popularity contest, but because when you look at the logic of
Windsor
, it's hard to imagine treating gay people in such a discriminatory manner, if you accept the fact that they're the same as everyone else.

During my Fifth Circuit argument, I was again very reluctant as a New Yorker to criticize the state of Mississippi:

ME
: I'm not from Mississippi, but Judge Reeves below certainly was, and he was not as optimistic as Judge Sutton in the Sixth Circuit that the democratic process in Mississippi could be relied upon to give gay people their rights under the Fourteenth Amendment. You can read that yourselves. He's much more of an expert on that than I am.

JUDGE GRAVES
: Well we got an amicus brief from members of the Mississippi legislature, didn't we in this case?

ME
: We did. It didn't predict, if I recall correctly, that they intended to pass equal rights for gay people any time soon.

[LAUGHTER]

Once again, the judges had made my arguments for me. When my time was up, the attorney for the state of Mississippi, Justin Matheny, stood up for his rebuttal. He was at the podium only a brief time, but it involved what was probably the best exchange of the entire day. Matheny argued that time, rather than judicial intervention by the court, would ultimately resolve the issue of discrimination against gay people and that the courts should not step in: “Saying that Mississippi will never change its mind, or it's not likely to, is not a reason to take away the state's ability to decide things.”

Judge Higginbotham paused for a moment, ran his hand through his leonine white mane of hair, and, leaning back in his chair, looked down at Matheny from the bench. He then intoned, “Those words, ‘will Mississippi change its mind?' have resonated in these halls before.”

With this comment, Judge Higginbotham, who had first been appointed to the bench when John Minor Wisdom was still presiding over cases at the Fifth Circuit, clearly and firmly connected African American civil rights and gay rights. Justin Matheny did not reply but simply closed his rebuttal by saying, “The state asks that the court reverse the district court's preliminary injunction below,” before quickly taking his seat.

After the oral arguments, we all went out for lunch at Herbsaint, a restaurant across Lafayette Square from the courthouse where we gorged on mint juleps, fried oysters, and gumbo. Our clients Carla and Joce were thrilled to be able to meet “Miss Edie” by cell phone when I called to tell her about the argument. On her Facebook post later that day, Joce recalled, “So, we're sitting at lunch. And Roberta Kaplan says ‘Let's call Edie! She'll want to know how it went.' I'm sitting there in awe watching the incredible Robbie Kaplan tell Edie Windsor that today was all about her name. And then Robbie says, ‘You wanna talk to my Mississippi plaintiff?' And hands me the phone.”

I was proud to have argued this case in a place where so much civil rights history had been made. Now all we could do was wait and see whether we had persuaded the Fifth Circuit to continue making history.

EPILOGUE

As it turned out, the Fifth Circuit never got a chance to rule. Only a week after our oral arguments in New Orleans, the Supreme Court announced that it would take up the issue of marriage equality once and for all. The justices agreed to hear a group of four cases coming out of the Sixth Circuit, with oral arguments at the end of April.

Although there had been a tidal wave of district and circuit court opinions affirming the equality of gay people under the law as a result of
United States v. Windsor
, the Supreme Court often chooses not to decide issues for which there is no disagreement among the circuit courts. So even though marriage equality was not yet a reality in all fifty states, the Supreme Court, in October 2014, had declined to grant certiorari in cases from the Tenth, Fourth, and Seventh Circuits covering states such as Utah, Oklahoma, Virginia, and Indiana, since all those courts had agreed that limiting marriage to straight couples violated the Constitution.

The next month, however, the United States Court of Appeals for the Sixth Circuit (covering Kentucky, Michigan, Ohio, and Tennessee) became the first and only circuit court to uphold laws that banned marriages between gay and lesbian couples. I was particularly disappointed when that decision came down, since it involved a case brought by a man named James Obergefell who lived in my home state of Ohio. The silver lining, at least, was that now the Supreme Court had a case to resolve.

Echoing the story of Edie and Thea,
Obergefell
v.
Hodges
is also the story of a relationship that spanned decades, a cruel neurological condition, an eventual marriage, and an untimely and heartbreaking death. Jim Obergefell and his longtime partner, John Arthur, had been together for many years, living in Cincinnati, Ohio. Later, Arthur became terminally ill with Lou Gehrig's disease, or ALS. The couple wanted to be married so badly that they chartered a medical plane to get married in Maryland on July 11, 2013, since they couldn't then do so in Ohio. Shortly thereafter, Arthur died. Obergefell sued to require Ohio to recognize him as Arthur's husband on the death certificate.

This was it: the final inning in the struggle for marriage equality in the United States of America. Depending upon how the Supreme Court ruled, either we would have full marriage equality in all fifty states or we would not, which would be a major setback, to say the least.

Behind the scenes, a group of activists connected with HRC, including Chad Griffin and Hilary Rosen, were discussing what we could do to help the new Supreme Court case,
Obergefell
v.
Hodges
. Capitalizing on the power of modern technology, Hilary came up with the inspired idea of submitting an unprecedented form of amicus brief to the Supreme Court, the People's Brief, to be read and signed online by members of the public.

In working on the People's Brief with law professors Dale Carpenter and Steve Sanders, I couldn't help but flash back to writing the briefs for the New York marriage case in 2006 and for
Windsor
in 2013. Although we had come so far, we still had at least one more river to cross. We began with the 1972 case
Baker
v.
Nelson
. And then Jaren had another brilliant idea: using
Baker
v.
Nelson
on offense, rather than playing defense. As we explained to the Supreme Court: “Forty-five years ago in Minneapolis, two gay men sought a license to marry each other. Not surprisingly, their request was denied. To everyone but them, the recognition that they sought was utterly unthinkable at the time.” Our brief surveyed the dramatic sea change that had occurred since
Baker,
not only in American society but in the Supreme Court's own jurisprudence. For example, in the 1986
Bowers v. Hardwick
case brought by a “practicing homosexual,” the Supreme Court held that the argument that it was unconstitutional to criminalize sexual relations between gay people was “at best facetious.” Seventeen years later, in
Lawrence v. Texas,
the Supreme Court held that “
Bowers
was not correct when it was decided, and it is not correct today.” By 2013, Justice Kennedy observed in
Windsor
: “It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage.”

We wanted to show that there really was only one reason to explain why Ohio insisted on disregarding Jim Obergefell's marriage to his late husband:

It is not insignificant that petitioner James Obergefell from Ohio merely seeks to have the state correct the facts asserted on the death certificate of his late spouse, John Arthur. The two men were, in fact, married under the law of Maryland where their marriage was performed. It is absurd to contend that refusing to certify that a decedent was “married” to his spouse at the time of his death could possibly influence child rearing, or the willingness of straight couples to marry, or even offend tradition. But actions speak louder than words. Ohio insists that there must be a blank space on Mr. Arthur's death certificate where Mr. Obergefell's name should be. Not content to deny these men the equal protection of the law in life, it also seeks to deny them dignity even in death.

The People's Brief, submitted to the Supreme Court on March 6, 2015, garnered 207,551 signatories from people in all fifty states. Edie Windsor was the first person to sign. Not surprisingly, two of the states that had the most signatures, Ohio and Texas, were states where gay couples were not yet permitted to marry. When we printed out the final document, it was 3,500 pages long. Making the required fifty copies to be delivered to the Supreme Court took four solid days of printing, and the resulting mountain of paperwork filled nineteen boxes, which were delivered by HRC and Jim Obergefell to the Supreme Court on March 6.

A few weeks later, on April 28, 2015, I sat in a packed Supreme Court courtroom to hear the oral arguments in
Obergefell
. It felt like old home week for LGBT civil rights advocates at the Supreme Court. Paul Smith (who had argued
Lawrence
at the Supreme Court) was there, as were Columbia law professor Suzanne Goldberg (who worked on
Lawrence
while at Lambda), James Esseks, Evan Wolfson, Freedom to Marry campaign director Marc Solomon, Chad Griffin, Fred Sainz of HRC, Ted Olson, Pam Karlan, and many others. Sitting next to each other a few rows behind me were Gavin Newsom, the former mayor of San Francisco who led the way in marrying gay couples in 2004, and Margaret Marshall, the former chief justice of Massachusetts, who first ruled in
Goodridge v. Department of Public Health
that the core constitutional principles of due process and equal protection mandate that gay couples be permitted to marry. As a fitting culmination to what she had started more than a decade before, Mary Bonauto argued the case for our side on the question of whether all fifty states were required to allow gay couples to marry, and experienced Supreme Court advocate Doug Hallward-Driemeier argued that out-of-state marriages between gay couples had to be recognized in all fifty states.