AL GERHARDSTEIN, sweaty and defiant, jabbed the air with a ballpoint pen, looking at his notes and then back again at the semicircle of lawyers who were attacking his case against the State of Ohio. He had started off with what seemed like a simple argument, one that had already won a series of rulings in federal court. But now the questions were flying, and on this scorching July morning in 2014, Al paced at the podium, flipping the pages of his three-ring binder.
He had traveled to Nashville, Tennessee, for a moot court, a practice used by lawyers to simulate court proceedings and oral arguments, much like a dress rehearsal. Here, in a conference room of a local law firm, Al would practice his delivery before a team of supporters that would play the role of judges, exposing and exploiting weaknesses in his case. It would be a grueling, daylong strategy session, hashing out legal principles over turkey sandwiches and iced tea.
“We have four babies and Ohio is refusing to recognize the marriages of their parents,” Al told the group. “That’s true also of the Obergefell plaintiffs. All they want is for the death certificate to say ‘married,’ under marital status—”
“Look,” one of the lawyers interrupted. “You’ve got two sets of very compelling plaintiffs. Their stories are heartrending, no question about it. But I don’t understand. The federal government forces the states that don’t want to do this? I don’t think that your compelling clients make any difference.”
Al put his hands behind his back and shot back, “Ohio has identified an entire group of citizens, married gays and lesbians, and walled them off. It says that their marriages don’t count, that their families are unworthy and that their children are unequal.”
The lawyers kept pressing.
“So if another state were to decide that they are going to allow polygamist marriages, does Ohio have to, as a constitutional matter, recognize their marriage?”
“How about this? Another state allows siblings to marry, and that couple comes to Ohio. Must Ohio recognize their marriage?”
“Are you saying that there is a fundamental right to the recognition of your marriage?”
Al smiled slightly at the skeptical attorneys with their legal pads and laptops. He knew the questions would only get tougher when he stood in two weeks before a three-judge panel at the Sixth Circuit Court of Appeals, which had jurisdiction over cases from lower federal courts in Ohio, Michigan, Kentucky, and Tennessee.
More than twenty attorneys had come to Nashville to prep because the Sixth Circuit had pending same-sex marriage appeals from all four states within its jurisdiction and had decided that attorneys would present their arguments back-to-back on the same day in its Cincinnati courtroom.
The governor of Kentucky was appealing two rulings, both issued after lawyers Shannon Fauver, Dawn Elliott, and their legal team filed suit. One ruling had struck down the state’s ban on the recognition of same-sex marriage, just as Judge Timothy Black did in Ohio. But the second ruling was more sweeping: it ended Kentucky’s ban on same-sex marriage entirely, effectively requiring the state to issue marriage licenses to same-sex couples. Federal judge John G. Heyburn II had called the state’s arguments in support of the bans “not those of serious people.”
Tennessee was appealing a ruling by federal judge Aleta Arthur Trauger, who had written on behalf of the plaintiffs, “At this point, all signs indicate that, in the eyes of the United States Constitution, the plaintiffs’ marriages will be placed on an equal footing with those of heterosexual couples and that proscriptions against same-sex marriage will soon become a footnote in the annals of American history.”
University of Tennessee adjunct law professor Regina Lambert had helped launch the case, along with Abby Rubenfeld, a noted gay rights advocate and civil rights attorney in Nashville who had successfully toppled Tennessee’s sodomy law in 1996. A partner in a prominent Tennessee law firm had also offered to help, but he pulled out when his firm decided it didn’t want to be involved in a same-sex marriage lawsuit.
At the University of Tennessee, a second-year law student spoke up and told Lambert, “My dad will do it.” Bill Harbison was a veteran civil litigator and third-generation Tennessee attorney.
“It’s the right thing,” Harbison said when his son called to tell him about the case. He enlisted three other attorneys from his firm to help. The team brought on a seventh attorney from Memphis, Maureen Holland, as well as the National Center for Lesbian Rights. They had three sets of plaintiffs, including Valeria Tanco and Sophy Jesty, veterinarians who had met at Cornell University, married in New York, and moved to Tennessee to become professors; and Sergeant First Class Ijpe DeKoe and Thomas Kostura, who had married in New York just before DeKoe began a yearlong tour of duty in Afghanistan.
Harbison knew Tennessee attorney general Robert Cooper Jr. because their fathers had served on the state supreme court in the 1970s, so he decided to deliver a copy of the lawsuit personally, telling the attorney general, “I’ve got something for you. I thought I would come tell you myself.”
In Michigan, attorneys Carole Stanyar and Dana Nessel had sued in 2011 on behalf of two nurses, partners for nearly a decade and the parents of three adopted children, two with special needs. Because of the state’s marriage ban, the two women couldn’t jointly adopt their children. Their legal team, which included criminal defense attorney Kenneth Mogill and Wayne State University Law professor Robert Sedler, took the case to trial, bringing in experts on subjects ranging from psychology to the history of marriage and discrimination. “Many Michigan residents have religious convictions whose principles govern the conduct of their daily lives and inform their own viewpoints about marriage. Nonetheless, these views cannot strip other citizens of the guarantees of equal protection under the law,” federal judge Bernard A. Friedman had ruled.
Ohio and Tennessee had pushed only for the recognition of marriages performed in other states. Michigan was fighting for the freedom to marry itself. Kentucky had two cases, one pushing for marriage recognition and the other for the right to marry. Now all of the appeals were headed to the Sixth Circuit, the very path that had initially worried the ACLU and other national gay rights groups early on.
Just before the moot court, Al had learned the names of the three judges who would decide the case, and it was a majority-conservative panel. One of the judges was Jeffrey Sutton, a respected legal scholar who had clerked for Supreme Court justice Antonin Scalia, long considered an intellectual anchor for the high court’s right wing.
Al was battling a rare case of nerves. A Washington Post/ABC News poll had found that a record-high 59 percent of Americans supported same-sex marriage. But Al worried about a decisive defeat in the Sixth Circuit at a time when marriage cases from other states were heading to more progressive circuit courts. Only weeks earlier, a panel of judges on the Tenth Circuit Court of Appeals in Denver had ruled in favor of same-sex marriage, the first appeals court in the country to find that voter-approved marriage bans were unconstitutional.
“Sometimes justice is really clear,” Al told his son, Adam, who had joined Al’s practice as an associate after moving home from Minnesota, where he helped defeat a ballot measure banning same-sex marriage. “The lines are defined and we all know what should happen. And then you lose. It can happen. It’s happened to me.”
Standing at the podium during the moot court, Al looked at the attorneys from Kentucky and Tennessee, who had decided to team up with Ohio to practice for the Sixth Circuit. Michigan was preparing separately. Susan Sommer, the Lambda Legal attorney who was working with Al on the birth certificate case, James Esseks, the ACLU attorney involved in the death certificate case, and Sam Marcosson, a law professor at the University of Louisville, would play the role of judges, questioning Al during his argument.
“Do you have a fundamental right to have your marriage recognized from elsewhere even if you do not have a fundamental right to marry within the state?” one of the lawyers asked.
Al knew it was the most important question of the day. Before the Sixth Circuit, he would have to argue for marriage recognition without undercutting arguments about the right to marry, which was the ultimate goal.
Al paused and rubbed his hands together. “If we have a right to marry in another state and that right is fully supported and legal, yes, there should be a right to carry it across state lines.”
The lawyers were whispering around him. “Realistically,” Susan Sommer said, “we would be allowing the floodgates to open in Ohio if we were to say, ‘Yes. Out-of-state marriages for same-sex couples get recognized.’”
Al responded quickly, “The issue is Ohio can’t just decide today to target a group that is disfavored, that people dump on . . . and say, ‘Oh, we aren’t going to let those people have marriage.’ That kind of use of state power is abusive. It’s irrational. It is not a legitimate purpose.”
Al’s voice was rising. “There are four children that deserve to have two parents on their birth certificates.”
While Al was in Nashville at the moot court, Isaiah De Leon was savoring the blissful final days of summer break in a shamrock-green bedroom cluttered with video games and movie posters. He knew that his family would soon drive from Louisville to Cincinnati to hear arguments in a court called the Sixth Circuit and that his name might be read out loud because his fathers were plaintiffs in one of the same-sex marriage cases from Kentucky. But Isaiah was thinking more about the start of his junior year in Catholic high school than the case that bore his family’s name, which is exactly the way his fathers wanted it.
Michael De Leon and Greg Bourke fell in love thirty years earlier when it was still against the law to be gay in Kentucky. De Leon, with black hair and mocha-colored skin inherited from his Mexican ancestors, was raised on a farm in rural Kentucky after his father fought in Korea and Vietnam and then retired from the army. De Leon had been working on his bachelor’s degree in agriculture at the University of Kentucky when he met Bourke, one year older and four inches taller, who had a large Irish and German family in his hometown of Louisville. In 1987, they bought a red brick Cape Cod just down the street from Our Lady of Lourdes Catholic church, where a priest baptized their daughter Bella, adopted at birth, and then Isaiah, who joined the family as a toddler a year later.
Isaiah never actually talked with his fathers about why his family was different, mostly because his life seemed so ordinary.
He ate dinner on a dining room table that his great-grandmother bought in the 1900s. He gathered corn and potatoes in a vegetable garden that had crept across much of their backyard. He played soccer on a team coached by one of his fathers and earned badges in a Boy Scout troop led by the other. Isaiah was heavily involved in their parish, and the only thing that came close to God in his devout family was Notre Dame football, which was celebrated regularly at tailgate parties.
Isaiah had always figured his fathers were married, but on Bella’s fifth birthday in 2004, Bourke and De Leon took the children to Canada and legally married in a wedding chapel overlooking Niagara Falls. Bella, in a pale yellow dress with white roses, gawked at the waterfalls, lit at night in rainbow colors. Isaiah decided he had never seen anything so big.
Once, in the lunch line in elementary school, another student turned to Isaiah and said, “You don’t have a mom. You have two dads and your dads are gay.”
“What did you say?” Isaiah shot back. In the mostly white school, he had been teased for being biracial, but occasionally he had also been told that his fathers were “faggots.” Shifting from foot to foot with his lunch tray, he was angry and embarrassed, but since he visited his birth mother several times a year, he said, “Well, I do have a mom and her name is Wendy and she drives a truck.”
Isaiah was pleased with himself for not whopping the kid across the head and rushed home to tell De Leon. “It sounds like you handled that perfectly,” his father said.
A more urgent problem came later, when the Boy Scouts learned that Bourke was gay and dismissed him as a troop leader. Isaiah was in ninth grade, and as the case drew headlines, he traveled with his family to Dallas to help deliver petitions to the headquarters of the Boy Scouts of America. Isaiah told reporters, “I’ve been scouting with my dad all these years. There’s no reason for this prejudice.”
Bella snickered at her big brother, standing in his olive green scouting uniform in front of the television cameras, but then she looked at her father Michael, shrugged, and said, “He did pretty good.”
The experience showed Isaiah that there were more than 1.4 million people who understood and accepted his family because they had signed their names to a series of petitions condemning the Boy Scouts’ policy on gay members and leaders.
At the end of Isaiah’s freshman year in high school, his fathers called him into the living room with Bella for a family meeting. They had watched Disney movies and played Monopoly here, on the wood floor with an oriental rug that De Leon and Bourke had picked up in the 1980s. A crucifix hung near the leather sofa.
“Hey,” De Leon said, looking at Isaiah and Bella. “We’re making a federal lawsuit to recognize our marriage.”
Isaiah turned to his sister, confused. “What do you mean?” he asked. “Your marriage isn’t recognized?”
“You’re already married,” Bella added. “We went away and you got married.”
“We did go away,” De Leon said carefully. “The federal government has just now started to recognize our marriage, but our state does not.”
De Leon and Bourke had never discussed the matter of birth certificates with their children because they didn’t want to create unnecessary angst. Now, Bourke said gently, “We are both your parents, but only one of us is recognized as your legal parent. It creates a problem if something happens to one of us.”
Isaiah and Bella nodded. “Would you consent to be plaintiffs?” Bourke asked. “It will be public and everybody will know your family situation.”
“Well, they already know,” Bella said.
“We’re with you,” Isaiah said.
And so Bourke had called Shannon Fauver and Dawn Elliott, who would take the case pro bono. Like all civil rights lawyers, the lawyers would be paid by the defendants—in this case, the state of Kentucky—only if they won the case. And no one knew whether that would actually happen or how long it might take.
In August 2014, Isaiah and Bella drove with their fathers to Cincinnati to hear their case—Bourke v. Beshear—argued at the Sixth Circuit. “You cannot touch your phones,” De Leon warned from the front seat of the car. “You have to sit there quietly and respectfully. You cannot nod off.”
Isaiah knew there would be plaintiffs from other states at the courthouse, and as he settled in for the ninety-minute drive, he briefly wondered whether their stories would sound much like his own.
In a hushed Victorian house in the heart of downtown Knoxville, Sophy Jesty kissed her sleeping wife and slipped out of bed. It was just before 3:30 A.M., but it would take a good five hours to drive from Tennessee to the hearing at the Sixth Circuit Court of Appeals.
Jesty, a veterinarian with pale skin and cropped red hair, hated being away from her family even for one night, so she had decided to start the day before dawn and drive home that same afternoon. “I’ll call you as soon as I can,” she whispered to her wife, Val Tanco, who grunted good-bye. Jesty drove along a slick stretch of Interstate 75, quiet except for the truckers, and thought about the day ahead.
Until they moved to Tennessee, Jesty and Tanco had never had any plans to take up the issue of marriage equality. They met at Cornell University, where Jesty was finishing a fellowship in veterinary cardiology and Tanco, ten years younger, was completing a residency in animal reproductive medicine. It was a natural career path for Tanco, who had grown up in Argentina learning about cattle production.
They married in Brooklyn on a clear May afternoon in 2012 and had a ceremony in an old barn strung with white lights in the foothills of the Smoky Mountains. Tanco’s father had been unsure how to respond ever since he learned that his daughter was a lesbian, but he flew in from Argentina for the ceremony. When he looked at Tanco in a white wedding dress, long brown hair hanging loosely around her shoulders, he asked Tanco’s mother in Spanish, “Where should I stand so that I can walk Vale down the aisle?” He gripped his daughter’s hand so tightly that his knuckles turned white.
Tanco and Jesty had worried about the move to the South, but they were drawn to the crowd in veterinary medicine at the University of Tennessee. Jesty applied first and when she was offered the job, she said, “The only way I can take this position is if you find a position for my partner. She’s a reproductive specialist.”
“Give me a few days and we’ll see what we can do,” the department chair replied, and then brought in Tanco through a spousal hire.
They bought a house near the university, and the day after the Windsor ruling in 2013, Tanco became pregnant through artificial insemination. They knew attorney Regina Lambert and her brood of poodles through the vet school, and after discussing the lawsuit, Tanco and Jesty signed on. They were about to become mothers, but without a court order, only Tanco would have legal rights to the baby. They sued in October, when Tanco was four months pregnant, and then waited, through doctor’s visits and parenting classes, for a ruling from the judge. The baby was due in March, and Jesty wanted parenting rights in the hospital.
Finally, on March 14, the judge issued a preliminary injunction, ordering the state to recognize the marriages of Jesty and Tanco, and two other sets of plaintiffs. Lambert worried the state would try to “stay” the ruling during an appeal to the Sixth Circuit, so she started calling Jesty every few hours to check on the status of the pregnancy. “Any movement in the right direction?” Lambert asked, anxious to secure the birth certificate. “Do you think it’s going to be today?”
Emilia was born two weeks later, eight pounds, six ounces, with black hair and olive-colored skin inherited from Tanco. “I’m one of your mommies,” Jesty said, cradling the baby in her neck. The following day, they got a birth certificate listing both their names.
Four months passed in a blur of late-night feedings, and now Jesty was heading to Cincinnati, missing her wife and daughter and thinking about the three judges who would hear their case. Would they see a family making a life together in a rambling house in Knoxville or something else entirely, something strange and unworthy, banned by 1.4 million Tennessee voters?