THE ROWDY crowd wore red for love and spilled across the lawns of Cincinnati’s Lytle Park, with its perennial gardens and towering statute of Abraham Lincoln, dedicated in 1917 by former President William Howard Taft. Jim Obergefell stepped lightly to a makeshift stage draped in a LOVE IS LOVE banner, hoping his voice wouldn’t fail him.
On the eve of the hearing at the Sixth Circuit Court of Appeals, church leaders, city council members, and former Ohio governor Ted Strickland had come to the marriage equality rally in the city’s historic district, where about seven hundred people swayed and prayed in the sultry August air. Jim had written a speech about John, and as dusk settled in Cincinnati, he looked out at the mass of supporters with rainbow flags. In a lineup of prominent speakers, he decided to start with “So who am I and why am I up here?”
And then he told his story. “Almost twenty-two years ago, I fell in love with John . . .”
The crowd quieted and Jim looked down at his notes, careful not to lose his place. “I’d watched this horrible disease rob John of every ability—to walk, to stand, to care for himself, to feed himself, to use his limbs, to speak more than a few words. Even with all ALS took from him, it couldn’t take our love or his desire to do something for us, to help protect me once he was gone, to be legally married.”
He went on. “The state says my relationship, my marriage, means nothing. That isn’t right. It isn’t fair. It’s disrespectful. . . . I’m a husband, and now a widower. I’m not willing to give up my right to be either.”
The applause was fierce and exuberant, and in that brief moment among strangers, Jim didn’t feel quite so alone. But the next morning, he dressed alone for the hearing at the Sixth Circuit. He drove alone to Al Gerhardstein’s law office. He sat alone in the courtroom, clutching a pink ticket that said PLAINTIFF and absently studying a carving of a bald eagle, wings spanned, that was perched over a semicircle of leather chairs reserved for the three judges.
Joe Vitale squeezed in next to him. Later, back home in New York, Vitale would tell his husband, “We all have someone except for Jim.”
The room was packed with lawyers and plaintiffs from all four states. Isaiah and Bella sat between their fathers, who had carried a Kentucky state flag at the rally the night before. Greg Bourke, in his Boy Scouts uniform, had told the cheering crowd, “We have raised our Kentucky family together. We are Kentucky, and after thirty-two years together, we have earned the respect for our marriage.”
Michigan plaintiffs April DeBoer and Jayne Rowse huddled with their attorneys. The nurses were raising three children but had been barred by state law from jointly adopting them. The courtroom was filled with babies, born to Pam and Nicole Yorksmith, Kelly McCracken and Kelly Noe, and Brittani Henry and LB Rogers in the months since Judge Black’s ruling. DeBoer and Rowse walked over to see Orion Yorksmith, sleeping in a sling crisscrossed across Pam Yorksmith’s chest.
Regina Lambert, one of the Tennessee lawyers, brought along her eighty-seven-year-old father, whose politics swung far right except in the case of same-sex marriage, perhaps because his daughter was gay. “It’s like a vegetarian with a hamburger exception,” Lambert teased. At the rally the night before, the retired General Motors insurance adjuster had put his hand over his heart and sung “The Star Spangled Banner” in a red plaid shirt with a WHY MARRIAGE MATTERS sticker on the breast pocket.
Al’s cocounsel, Susan Sommer, had ducked into a drugstore before court to pick up a box of granola bars, which she handed out to plaintiffs and lawyers just before the three-hour hearing was called to order. Sommer sat down next to Al and was struck, as she always was, by the will of the families sitting behind her. Quiet dignity, she called it.
Though there were never certainties in court, by Al’s count, the ruling would be split. Judge Deborah Cook, nominated to the bench by President George W. Bush, would likely side with the appealing states, while more liberal Judge Martha Craig Daughtrey would likely agree with Judge Black and find marriage bans unconstitutional.
But Jeffrey Sutton, the youngest of the three panelists and a leading conservative voice on the court, was far harder to gauge. The fifty-three-year-old jurist, a visiting lecturer at Harvard Law School, believed that limiting the role of the federal government in the affairs of states was a critical tenet of the Constitution. But he had also cast the deciding vote three years earlier to uphold the constitutionality of President Obama’s Affordable Care Act. Al studied the thoughtful judge, who was looking out across the expanse of the courtroom, and wondered whether his vote would decide this case, too.
Michigan solicitor general Aaron Lindstrom stood up to present his argument first, walking across the courtroom’s red carpeting to a wooden lectern directly in front of the three judges. He started in a predicable place, but Al knew the argument would appeal directly to Judge Sutton.
In Michigan in 2004, 2.7 million voters had passed a ballot initiative banning same-sex marriage.
“It is a fundamental premise of our democratic system,” Lindstrom began, “that the people can be trusted to decide even divisive issues on decent and rational grounds, and that’s what this case is about. It’s about who gets to decide what the definition of marriage is, not what that definition must be.”
A former army cavalry officer and graduate of the University of Chicago Law School, Lindstrom had a delivery that was matter-of-fact and practiced, even when Judge Sutton intervened.
“Is it difficult to adjust state laws on marriage, divorce, anything else, or is it really pretty simple, you just now include this new group?” Judge Sutton asked, his voice soft and level.
“It would have widespread impact,” Lindstrom replied. “I’m not quite sure exactly how all of those would play out—”
“What would they be? That’s the question,” Judge Daughtrey said with a faint southern accent. She had gone to Vanderbilt Law School in the 1960s when women were becoming nurses and teachers and was only the fourth female judge to serve on the Sixth Circuit.
She asked again: “What would that be?”
“Well, as far as changing all of Michigan’s law about marriage? In the big picture, one of the things that could happen if it were changed, there would be no institution in Michigan that would say it’s important to have both a mother and a father. So in terms of societal impact, I think there might be harm, which is that there would be nothing to say it’s important for fathers to be there and mothers to be there, and mothers and fathers bring different things to the table.”
Al cringed, thinking about the parents and children he represented, sitting behind him in the roped-off section for spectators, and was momentarily grateful that the State of Ohio had avoided such divisive arguments in Judge Black’s courtroom.
“Do you honestly think that’s what’s happened in the states where same-sex marriage is now valid?” Judge Daughtrey pressed.
“I think it’s too early to tell, Your Honor. It’s only been ten years since the first state passed it and—”
“But we’re now to something beyond twenty-five percent of the jurisdictions in the country, and maybe more than that in terms of population as a whole, and it doesn’t look like the sky has fallen in.”
“I think the point is that it’s too early to tell. You’re changing such a fundamental bedrock of society in just ten years. That’s not even a single generation of children, so I don’t see how it could be possible to access the outcome on children.”
Judge Sutton listened quietly to the exchange, his expression unreadable. But he quickly stepped in when Carole Stanyar, one of the attorneys for the plaintiffs of Michigan, came to the lectern.
“I know that there’s many significant benefits, some of them monetary, that get extended to same-sex couples if you win here, and I think that’s significant,” the judge said. “But I have to believe, based on the briefs, that the most important thing is respect and dignity and having the state recognize these marriages the same way heterosexual marriages are recognized, and if respect and dignity are critical, are the key elements here—”
Al could see where the question was going and tensed. He knew that Judge Sutton believed the courts were meant to enforce laws, not create them, and that the voters were ultimately in the best position to decide law and policy.
The judge sighed softly and continued, “Maybe it’s just something I’m missing, but I would have thought the best way to get respect and dignity is through the democratic process. . . . Nothing happens as quickly as we might like, but I’m just curious how you react to that point.”
It was the first significant challenge of the hearing, and Stanyar, a veteran criminal defense lawyer who had sold her house to fund the case even after some gay rights advocates suggested it was unwinnable, responded quickly. “The Michigan marriage amendment gutted the democratic process in Michigan. Voters can no longer appeal to their legislators . . .”
The judge was unconvinced. “Aren’t you optimistic that Michigan voters, if another initiative were put in front of them, it certainly would be a different vote and it might well be a different outcome even today?”
“You would have to come up with the signatures of ten percent of the total number of voters that, you know, were in the last general election. It’s very cost prohibitive for a disfavored minority to be doing that.”
In 2012, gay rights groups spent $15 million in Minnesota to defeat a constitutional amendment banning same-sex marriage, and another $15 million in the state of Washington. In Michigan and Ohio, with larger media markets, advocates had estimated the costs would likely double.
“The goal is to change hearts and minds . . . ,” Judge Sutton went on. “Isn’t it worth the expense, and don’t you think you are most likely to change hearts and minds, through the democratic process than you are with the decision by five justices of the U.S. Supreme Court?”
Stanyar fired back. “Fundamental constitutional rights may not be submitted to popular vote. They depend on the outcome of no election.”
“. . . My question is assuming you can win on this,” the judge said quietly. “I’m asking you a question: Why do you want this route? It’s not one hundred percent obvious to me why it’s the better route. It may be the better route for your clients, and as a lawyer you have to keep the focus on that, but it’s not one hundred percent obvious to me that it’s the better route for the gay rights community. That’s not obvious to me.”
Al shifted in his seat, anxious for his chance to appeal to the panel. Judge Sutton was a deliberate, astute speaker and writer, but in this case, Al believed the judge had slipped across a line, acting as some sort of campaign adviser rather than a jurist charged with deciding whether fundamental rights had been trampled by popular will.
Al decided he had his work cut out for him.
State Solicitor Eric Murphy would represent Ohio, and he, too, started by arguing for the democratic process. “The fundamental question in all of these cases is the same, and that fundamental question is not whether Ohio should recognize same-sex marriage but who should make that important decision of public policy on behalf of the state.”
“What implementation problems arise if the plaintiffs win?” Judge Sutton asked.
Murphy had argued major appeals for the global law firm Jones Day before being tapped by Ohio attorney general Mike DeWine. He replied, “I don’t know if it’s an implementation problem, but I think that it would certainly require a legislative response. For instance, birth certificates have ‘father’ and ‘mother.’ I mean, maybe it should be changed to just ‘Parent 1’ and ‘Parent 2.’ I mean this is just a pragmatic response—”
“It’s a pragmatic question,” Judge Sutton said.
“I would imagine those things would happen throughout the Ohio Revised Code, where there’s reference to husbands and wives. . . .”
“Other statutes about divorce, adultery, all that,” Sutton said, “all I’m hearing you say is that, well, yeah, you would just have to use ‘spouse’ or—”
“‘Spouse’ or ‘parent,’” Judge Daughtrey added.
“That’s all that would have to change. Nothing else?” Judge Sutton said.
“. . . Frankly, Your Honor, I didn’t anticipate the question, so I didn’t review the revised code all that closely myself.”
“You didn’t bring it with you?” Judge Sutton said to a discreet round of laughter.
“Maybe I should have,” Murphy replied. “I do think that there’s no doubt that it would require new laws being passed—”
“Or forms being reprinted, perhaps,” Judge Daughtrey said.
“It’s just too new today,” Murphy said minutes later. “The law is always about drawing lines, and at one point, maybe it becomes an irrational idea to proceed with caution. But I don’t think we’re there yet.”
Murphy was wrapping up when Judge Daughtrey leaned forward. “Do you have any knowledge of how many years it was from the start of the campaign until the Nineteenth Amendment, when women achieved the right to vote? Are you familiar?”
“Ah, I’m not, Your Honor. I’m sorry,” he said.
Al’s law partner, Jennifer Branch, whispered, “Eighty years.” Branch’s grandmother had cast her first vote in the early 1930s, backing Franklin Roosevelt even after her husband, a Republican, refused to drive her to the polls.
Judge Daughtrey, who kept a first edition of the four-volume History of Woman Suffrage signed by Susan B. Anthony in her chambers, said sternly, “If I told you that it took seventy-eight years of crossing the desert back and forth, back and forth, trying to achieve it through the democratic process, would you be surprised?”
“Well, not with respect to the United States Constitution, because the United States Constitution sets a very high bar for constitutional amendments,” Murphy replied.
“No, no, no, no, no,” the judge said quickly. “I’m talking about going into every state in the country, every city, every school board election for seventy-eight years and trying to get enough going to convince the legislatures to adopt or extend the vote to women, seventy-eight years of it. And would you be surprised to find out it didn’t work and it took an amendment to the Constitution to finally achieve that after seventy-eight years?”
“Yes, there’s no question that the U.S. Constitution is very different—”
“No, no, no. That’s not my question. You—”
“But with respect to the Ohio constitution—”
“Excuse me. You’re not getting the point. The point is you want to do this democratically, state by state, legislature by legislature, municipal government by municipal government, as far as I know, and it just doesn’t always work.”
“Well, that’s, that’s—”
“It doesn’t always work—seventy-eight years to get women just the right to go to the polls and vote.” The judge’s voice softened. “That’s all. You don’t have to respond. It’s okay. I just thought you’d like to know that in case you are ever on Jeopardy.”
Watching the exchange, Kentucky lawyer Shannon Fauver told herself, “She’s on our side.”
Fifteen-year-old Bella De Leon, sitting beside her brother and fathers, was so taken with the judge that she thought: I’m going to go to law school.
The hearing was nearly halfway over when Judge Sutton finally gestured to Al. “Okay. Mr. Gerhardstein.”
Al straightened his shoulders, stood up, and passed Eric Murphy on the way to the lectern. “Ohio issues a birth certificate that names only one member of each couple as the parent and denies recognition as a parent to the other. That’s a real serious harm,” Al said. “Ohio also says to the surviving spouses in Obergefell, ‘You must accept a death certificate for your loved one that’s wrong, one that does not say you were married even though you are, and one that leaves blank the spot where your name should go as the surviving spouse.’”
Judge Sutton interrupted. “Can I just ask you a framing question, and I’m fearful it’s a little simplistic, but I’d love to hear your reaction to it because we do have all these cases and we have all these issues.”
Al waited.
“My rather simplistic way of looking at it is isn’t the first question whether a state can decide, for its own purposes, its own citizens, whether to recognize same-sex marriage, and if it decides that it’s not going to do that for now and if the U.S. Constitution . . . permits that choice, I guess it seems really odd to me that they can be told, ‘Okay, even though you can make that choice for your own citizens, if someone comes from another state, that public policy choice doesn’t bind you.’”
“. . . Once you’re married,” Al answered, “that attaches all kinds of vested rights. You have important parenting rights. You have important child-rearing rights that have been recognized by the Supreme Court. And for history, that’s been transportable across state lines. This . . . involves people who have a history of discrimination and an issue that’s very personal and carries with it very important rights and—”
“I agree that there’s a history of discrimination. I don’t think there’s any doubt about that,” Judge Sutton said. “I guess what is not so obvious to me is a history of discrimination when it comes to access to marriage. That seems to me a much more recent phenomenon and just a reflection of the current times and a new sensitivity on both sides of the debate.”
“The deal that these couples made when they got married in New York, California, Massachusetts, Maryland, and Delaware,” Al replied minutes later, “was that they would have a marriage that they could carry—”
Judge Cook, once a possible nominee for a seat on the U.S. Supreme Court, cut in. “Can we add into the logic of this that they were well aware that they were moving to a state where same-sex marriage was not recognized?”
“Your Honor,” Al said. “We are in a situation where the democratic process has evolved, okay—”
“But I think it goes to the thinking that you proposed—”
“Right, but there’s not like a contributory negligence defense to a constitutional right,” Al said. “I mean, either your marriage is transportable or it’s not. They got married because they were in love. They didn’t get married trying to think of well, you know, ‘Where can I go here?’ and ‘Where can I go there?’ They do expect that their marriage will be transportable. That’s a reasonable expectation. In fact, forty-four percent of the people in this country now live in a state where same-sex marriage is available, where the freedom to marry has been recognized, and that includes those twenty to twenty-one states where the deal is done, where there’s no more appeals pending and so on.”
“That could go both ways, wouldn’t you agree?” Judge Sutton asked. “. . . On the one hand, it helps you in the sense that maybe you’re getting to some tipping point where it’s just outlier states and the courts step in. On the other hand, it suggests the democratic process is working and indeed working effectively and very quickly from your clients’ perspective.”
“. . . It’s been a long process of development,” Al replied, “but, you know, Judge, what I’m suggesting is that the ultimate role of the federal court is to keep states from denying the liberty to certain citizens, and here when you’ve got citizens who have a liberty interest—their marriage already exists, their marriage is done—and they’ve now got children and those children deserve to have two parents, and the state is now saying, ‘Because of our commitment to democracy, we’re just going to say no to you. And we’re just going to wait for you to . . . reverse our constitutional amendment and, you know, we’ll see you in a few years when you can pull off that kind of fundraising and that kind of democratic action.’
“The reality is that these rights are very, very profound,” Al continued, “and we know from Supreme Court case law that a marriage is a very significant thing. It’s solemn. It’s precious. It’s got all these attributes that allow you to have the relationship with your children and with your spouse. And this can’t be just subject to vote.”
“It shouldn’t just be subject to vote,” Judge Sutton said. “But I’m just curious why you’re so sure about the better path. In other words, let’s say the gay community gets to pick the path. You can get your Supreme Court decision in June of next year or you can have five years to change hearts and minds through democracy in the remaining twenty-nine states. It’s just not obvious to me what’s the best path.”
“Well, I’m trying to suggest a constitutional path—”
“I get it. The assumption of the question was that you can have either one. That’s the assumption of the question. It’s just not obvious to me why the Supreme Court ruling by five justices in June of 2015 is the better path for the community—not necessarily your clients, the community at large. Changing hearts and minds happens through democracy much more effectively than happens through court decisions.”
Al lowered his voice. “I understand, judge, but I represent four couples. Their kids deserve two parents. They deserve them today.”
Al turned around, motioning to the families behind him. “You’ve got the non-birth mothers of these three babies saying, ‘I am a parent. Sue me if my kid doesn’t get my support. Call me if my kid doesn’t show up for school. Prosecute me if there’s neglect of my kid.’ And Ohio is saying, ‘No. We don’t want that. We’ll let this kid only have one parent but if you’re an opposite-sex [marriage] kid, then you will have two parents.’ That’s a super harm to these children. And that’s part of why the matter is urgent.”
“I’ve been married to the same woman for forty-two years, three great kids,” Al concluded. “The law is rigged in my favor.”
Two hours had passed, and since the arguments in Kentucky and Tennessee were similar to those in Ohio and Michigan, the remaining attorneys had been given only fifteen minutes apiece to address the court. But Al was anxious to hear from the attorneys for the two states, which had suggested that bans on same-sex marriage were rational because heterosexual couples could procreate, promoting stable families.
Attorney Leigh Gross Latherow, a civil litigator who was hired by Kentucky’s governor after the attorney general declined to defend the marriage ban, said, “Kentucky has said that perpetuation of the human race leads to stable birth rates which, in turn, leads to a strong economy.”
“. . . Marriage doesn’t mean you have to procreate,” Judge Daughtrey interrupted. “There is a right not to procreate.”
“There is a right not to procreate, Your Honor. The question is when you’re looking at a governmental benefit, which is a marriage license . . . is the group who gets the benefit, and here, traditional man-woman couples get the benefit, does that benefit further the state interest? And it does further the state interest.”
“Can you tell me how, though? We’re back to the old ‘What is it about same-sex marriage that will stop procreation in the state of Kentucky?’”
From his seat near the middle of the courtroom, Greg Bourke looked at Bella and Isaiah. Behind him, Joe Vitale thought of Cooper, home in New York. Both men were thinking the same thing: Why would their marriages stop heterosexual couples from having children?
“The state interest is in procreation,” Latherow continued later, “and we believe that couples who are married procreate. It’s really very basic—”
“Well, couples who aren’t married, in fact, procreate, too, and more and more couples these days are not getting married and are procreating,” Judge Daughtrey countered.
“They do,” Latherow said. “There’s no question about that.”
“So how does the law advance procreation?”
“We believe that in the confines of marriage that procreation occurs, just as it does outside. It doesn’t mean that it doesn’t happen outside. The law doesn’t have to be drawn with mathematical certainties.”
“Okay. So I can put this down that what the Kentucky law does is cause procreation?”
“It furthers the interest in procreation. Yes, Your Honor.”
“Okay, but wait, wait, wait, wait. I think we’re getting circular now. How does it foster procreation, and you’re telling me it does so because married people procreate?”
“That’s correct.”
“Is that what you said?”
“Same-sex couples—biology—same-sex couples cannot procreate. They can perhaps do artificial insemination. They can perhaps have a surrogate. But that’s not a procreation of that couple . . .”
“Okay. I got it. Married, opposite-sex couples procreate?”
“Yes, Your Honor. . . . And that advances the legitimate interests of the commonwealth.”
Attorney Bill Harbison would speak for the plaintiffs from Tennessee, including veterinarians Sophy Jesty and Val Tanco. “For the life of me,” he told the judges, “I cannot see a logical connection between the effect of these laws, which is to exclude recognition of a category of marriages, and promoting anything having to do with procreation, one way or the other.”
When the hearing ended, Al walked back to his law office, knowing it could be weeks or months before the panel delivered an opinion. Joe Vitale flew home to his husband and Cooper in New York City. Bella, Isaiah, and their fathers drove home to Louisville. Regina Lambert and her father drove home to Knoxville.
Susan Sommer couldn’t get a flight back to New York City until the next morning so she walked to her hotel, enjoying the afternoon sun after a long morning in court. Once, at a children’s birthday party, another mother had mentioned that she was taking her young son to counseling because she feared he might be gay and worried about a difficult life ahead of him. What we need to do, Sommer thought angrily, is not change the child but change the world around him.
Near the hotel, she passed boisterous groups of people heading downtown. Sommer smiled as they walked by. The crowd wore red, on this day for the love of Cincinnati baseball.
But it was love nonetheless.