THE THREE judges gathered in the robing room right after court adjourned and shut the door behind them, scattering a battery of anxious law clerks to their upstairs offices. Martha Craig Daughtrey hung up the black robe she had put on before the hearing and sat down at the conference table with her notes, first on Michigan, then Ohio, Kentucky, and Tennessee.
Alone in the wood-paneled room, named for a closet of robes used by the judges on the Sixth Circuit, judges Daughtrey, Cook, and Sutton would discuss the case for the first time. Then they would take a secret vote. If there was dissent, it was considered polite to speak up so that the presiding judge, in this case Jeffrey Sutton, could quickly decide who would write the court’s majority opinion, a massive research and writing assignment.
Judge Daughtrey knew that this would be her best chance to press the case for same-sex marriage because judges weren’t supposed to lobby colleagues individually after the vote. She had come to the hearing hoping that Judge Sutton would take her side and find the marriage bans unconstitutional. But his comments about the democratic process had been telling, and when he looked across the conference table and said that he was thinking about siding with the states—reversing the lower-court rulings—Judge Daughtrey was deeply disappointed.
She would try to move him anyway. She recounted the case of Jim Obergefell and John Arthur. “Jeff,” she said, pleading with the younger judge, “these two people were in love.”
She walked back to her office alone a few minutes later, on the losing side of a 2–1 vote. Her disappointment had given way to indignation, and when she opened the door to her office and looked at her law clerks, she sighed and said, “I hoped he wouldn’t want to go against history.”
Her feelings would spill into a blistering dissenting opinion that she would author in the coming weeks, starting with a quote by Benjamin Cardozo, who had succeeded Justice Oliver Wendell Holmes Jr. on the U.S. Supreme Court in the early 1930s: “The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by.”
Fifty years earlier, in a first-year law class at Vanderbilt with 127 men and three women, Martha “Cissy” Daughtrey had discovered firsthand how slowly equality came to the weak and disenfranchised.
She had grown up in the 1950s amid the steel mills of Middletown, Ohio, and was schooled on a high school scholarship at the National Cathedral School in Washington, D.C. In 1961, she married a political reporter for Nashville’s morning newspaper. When she showed up at law school in a green corduroy jumper, the only maternity outfit she could afford on an eighty-five-dollar-a-week journalist’s salary, her faculty adviser never spoke to her again. A constitutional law professor asked her to stand up in class and recite a 1961 Supreme Court case, Poe v. Ullman, which had kept intact a Connecticut law that banned the use of contraception. It could have been a coincidence, but Daughtrey didn’t think so.
There was no money for childcare, and there were no daycare centers in Nashville anyway, so she left law school when her daughter was born. She eventually found a preschool that admitted toddlers who were potty trained and spent the summer of 1966 hovering over a toilet. “Look,” she told her daughter, “I don’t want to put any pressure on you. But if we can get this done in the next couple of months, your mama can go back to law school.”
In her third year at Vanderbilt she started hunting for a job in bustling Nashville, with its Country Music Hall of Fame and downtown auditorium that hosted the Grand Ole Opry. But there were only three practicing female lawyers in town, and though Daughtrey was in the top 5 percent of her class, no Nashville law firm would hire her. She applied to a local bank, thinking that trust work would be considered an appropriate job for a woman, but the vice president said the bank hired men only. She promptly withdrew the seventy-five dollars in her savings account and stomped out.
She got a job in the U.S. Attorney’s Office, prosecuting criminals before all-male juries, and later returned to Vanderbilt to become the university’s first female law professor. As the only woman in the faculty lounge, she often found herself debating male professors about the burgeoning women’s movement. She was nominated to the Tennessee Court of Criminal Appeals, the first woman to serve on any court of record in the state. Once, a male lawyer in the throes of an oral argument had looked up at her on the bench and said, “Honey, I’m so glad you asked me that question.”
“I’m not offended,” Judge Daughtrey told him later, “but I just wanted to point out what you had done because if you ever call Judge Joe Duncan over here ‘honey,’ I think he might be offended.”
In 1993, as her daughter prepared to graduate from Vanderbilt Law School, Daughtrey was nominated by President Bill Clinton to a seat on one of the most powerful courts in the country, the U.S. Court of Appeals for the Sixth Circuit. The same-sex marriage cases coming out of Ohio, Michigan, Kentucky, and Tennessee felt to the judge like being there all over again, in a place and time when it was acceptable to marginalize an underclass because that was the way it had always been: us and them.
In her office after the vote in the robing room, she glanced at her books on the suffrage movement. In that low moment alone, knowing that the move toward marriage equality had just suffered a significant setback, she thought about the bumpy, long road to women’s rights. She felt certain of the similarities. Seventy-eight years spent waiting on the democratic process to work, Judge Daughtrey decided, had only seemed like a long time to the women who were waiting.
On the first Thursday in November, attorney Regina Lambert climbed into her BMW at the University of Tennessee and turned on her cell phone. She had been waiting weeks for news of a decision by the Sixth Circuit, checking her texts, checking her e-mails, checking the Internet, waiting and waiting again. Other courts had been drawing headlines, and Lambert could barely process the news. In September, one month after the Sixth Circuit hearing in Cincinnati, the Seventh Circuit Court of Appeals struck down marriage bans in Indiana and Wisconsin—the third circuit to rule on the side of same-sex marriage.
In early October, the U.S. Supreme Court declined to hear appeals from any of the three circuits. Rulings in favor of same-sex marriage in Idaho, Nevada, and Alaska followed in startling succession. By November 6, when Lambert turned off her cell phone to teach a legal writing class at the University of Tennessee, same-sex marriage was legal in thirty-five states. She had married in one of them right after the Windsor ruling, traveling to Vermont to exchange vows with her partner of twenty-five years before returning home to Tennessee, one of the remaining fifteen states with marriage bans.
She was pulling out of the parking lot when her cell phone started buzzing. She looked down, surprised to find dozens of new e-mails. The very first one was the decision from the Sixth Circuit, so she pulled over to the side of the road and, with shaking hands, scrolled to the last page of the ruling.
She settled on two stark words: We reverse.
Lambert sucked in her breath. She stared at her phone, blinking rapidly and fighting nausea. It felt like someone had socked her right in the gut, the same feeling she’d had in the courtroom back in August when Judge Sutton had talked about changing hearts and minds through the democratic process, no matter how long that might take. Sitting next to her father, Lambert wanted to stand up and shout, “I really don’t care about hearts and minds. These are life rights. It’s now.”
She knew she needed to call plaintiffs Val Tanco and Sophy Jesty to tell them that the Sixth Circuit had overturned the lower-court rulings and upheld the marriage bans, but she struggled to find the right words. Seven months earlier, Lambert had raced to the hospital to hold their newborn daughter, swaddled in a white fleece blanket with a grinning giraffe, and decided to stay all day to be sure that both mothers’ names were listed on the birth certificate, in compliance with the order by U.S. District Judge Aleta Arthur Trauger. But the order had been preliminary, and now the Sixth Circuit had invalidated it.
Lambert started reading the forty-two-page opinion, written by Judge Sutton and seconded by Judge Cook, sealing the 2–1 vote.
Not one of the plaintiff’s theories . . . makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters.
Judge Sutton had cited a watershed 1971 lawsuit in Minnesota, filed on behalf of two gay men who were denied a marriage license. The Minnesota Supreme Court had ruled that limiting marriage did not violate the Constitution, and the U.S. Supreme Court, when asked to consider an appeal, had rejected the case with a single line: “for want of a substantial federal question.”
The Supreme Court, Judge Sutton argued, had never undercut that precedent, not even in the Windsor decision, which ordered the federal government to recognize same-sex marriage but did not directly address whether state bans violated the Constitution.
Lambert skimmed the detailed sections in the middle of the ruling, where Judge Sutton had described the importance of judicial constraint and the sanctity of the democratic process.
A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the states.
. . . For all of the power that comes with the authority to interpret the United States Constitution, the federal courts have no long-lasting capacity to change what people think and believe about new social questions. . . . Isn’t the goal to create a culture in which a majority of citizens dignify and respect the rights of minority groups through majoritarian laws rather than through decisions issued by a majority of Supreme Court justices? It is dangerous and demeaning to the citizenry to assume that we, and only we, can fairly understand the arguments for and against gay marriage.
He had used forty-one words to sum up his answer to the question posed by the plaintiffs of Ohio, Kentucky, and Tennessee: Does the Constitution prohibit a state from denying recognition to same-sex marriages conducted in other states?
If it is constitutional for a state to define marriage as a relationship between a man and a woman, it is also constitutional for the state to stand by that definition with respect to couples married in other states or countries.
He closed with a final thought.
When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.
Lambert dialed Jesty and Tanco. “We got the news,” she said quietly.
That night, at home with their daughter, three cats, and two dogs, rescues named Biscuit and Carlos, Jesty felt as if Judge Sutton’s words were directed at her, and worse, her family. For the first time, she felt completely disconnected from the state of Tennessee. Would the government try to take away Emi’s birth certificate? Tanco and Jesty had decided they would never give their copy back. But now even Emi’s last name—the same as Jesty’s—could potentially be challenged since Jesty, in the eyes of their state, had no legal claim to the baby.
They sat on the couch after Emi fell asleep in a nursery painted turquoise. It would get colder soon and they would start picking up leaves from the oak and walnut trees in the backyard. They had fallen in love with the hundred-year-old Victorian house during one of their early visits to Tennessee in 2011, and they often sat outside late into the evening, drinking beer on a bright-yellow porch swing.
“We lost,” Jesty said. Her face was streaked with tears.
Years earlier, when Tanco was struggling with a tough climb on a hike in the mountains of upstate New York, Jesty had traced the contours of her face, cheeks, eyes, nose, mouth. Jesty was just like that, steadying and serene, and over time she had brought Tanco a great sense of comfort.
“I’m sorry, love,” Tanco said, and she meant it for all three of them.
The news about the Sixth Circuit made its way to New York, where Joe Vitale turned to his husband. “Don’t worry. We’re going to take this to the Supreme Court.”
“What are you talking about?” Rob Talmas said, his voice grim. “We’re nobodies.”
The news made its way to Cincinnati, where Judge Tim Black sat alone in his office, reading a decision that had overturned his own. He wondered whether Judge Sutton had made a tactical move, creating a “split” among the country’s circuit courts to compel the U.S. Supreme Court to take up the issue of same-sex marriage.
Judge Black knew that as the court of last resort, the Supreme Court received about seven thousand requests every year to hear cases but would consider only a fraction of them, most often those of exceptional national importance or those that had created conflict and confusion in the lower courts. Just weeks earlier, Supreme Court justice Ruth Bader Ginsburg had told a group at the University of Minnesota Law School that there was no urgency to take up the issue of marriage because the circuit courts had all ruled the same way. But now the Sixth Circuit changed all that.
Regina Lambert was also considering Justice Ginsburg’s prescient remarks. “We’re the split,” Lambert thought that first Thursday in November. Then, to make herself feel better, she read the dissenting opinion in the case, authored by Judge Daughtrey after the 2–1 vote.
Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there, my colleagues view the plaintiffs as social activists who have somehow stumbled into federal court, inadvisably, when they should be out campaigning to win “the hearts and minds” of Michigan, Ohio, Kentucky and Tennessee voters to their cause.
But these plaintiffs are not political zealots trying to push reform on their fellow citizens. They are committed same-sex couples, many of them heading up de facto families, who want to achieve equal status . . . with their married neighbors, friends and coworkers, to be accepted as contributing members of their social and religious communities and to be welcomed as fully legitimate parents at their children’s schools. They seek to do this by virtue of exercising a civil right that most of us take for granted—the right to marry.
. . . More than 20 years ago, when I took my oath of office to serve as a judge on the United States Court of Appeals for the 6th Circuit, I solemnly swore to “administer justice without respect to persons,” to “do equal right to the poor and to the rich,” and to “faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and the laws of the United States.” If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.
In the coming weeks, Lambert would read Judge Daughtrey’s dissent again and again, trying to find a flicker of light.
In Kentucky, Pam Yorksmith was so troubled by the Sixth Circuit’s ruling that she started making plans to legally adopt both her sons in South Carolina, which had begun to recognize the marriages of gay couples. The paperwork and legal fees would cost $10,000, but she never again wanted to worry about losing access to her children.
Only weeks earlier, six-month-old Orion Yorksmith had woken up with a terrible cough. “Can you see him struggling to breathe?” The doctor’s voice was urgent. “Take off his shirt and look at his ribs.”
It was well past midnight, but Yorksmith decided to take the baby straight to the hospital in Cincinnati. She kissed her wife, who would stay home with their older son, Grayden, and buckled Orion into the car. The eleven-mile drive into Ohio seemed endless, and she winced every time she heard Orion wheeze in the backseat.
Yorksmith checked in at the hospital’s front desk, holding Orion in her arms. The receptionist called up Orion’s original birth records, which listed only Nicole Yorksmith as Orion’s mother.
“Are you Georgia?” the receptionist asked, using Nicole’s legal first name.
“No. I’m Pam. I’m his other mother.”
Yorksmith had the amended birth certificate at home, delivered after Judge Black’s ruling in federal court. The state had listed both women’s names but added an asterisk underneath with the words, “pursuant to United States District Court.” It had felt like yet another insult, but standing there in the hospital waiting room with a wheezing, coughing baby, Yorksmith cursed herself for not thinking to bring it with her.
“You’re not listed here,” the receptionist said as she scanned Orion’s birth records.
“Look, all you have to do is Google my name and you will see that I am this child’s other parent.”
“I’m sorry,” the receptionist replied. “I have to call his mother before we can see him.”
Desperate to see a doctor, Yorksmith felt like screaming: I am his mother. Instead, with a hospital security guard standing behind her, she said, “You’ve got to be fucking kidding me.”
She carried Orion into the waiting room and texted her wife. “They’re going to have to call you before they even look at him.”
Thirty minutes passed. She texted again: Have they called yet?
Finally, Yorksmith was shown into a treatment room. The receptionist apologized, but by then, the only thing Yorksmith cared about was seeing a doctor. Driving home on deserted streets sometime after three A.M., with Orion on medication for a bad case of croup, she wondered whether the lawsuit would move forward after the loss in the Sixth Circuit so that, one day, minds and policies would change and no one would question whether she was Orion’s “other mom.”
It makes you feel like you’re playing house in the eyes of other people, she thought, exhausted, as she looked in the rearview mirror at her sleeping son.
Looking back, any number of things could have gone wrong after the loss in the Sixth Circuit as Al and the other lawyers, representing forty-two plaintiffs in four states, scrambled to figure out the best way forward.
Attorneys for the plaintiffs in one state could have opted to appeal to all the judges on the Sixth Circuit, which would have slowed the progression of the case as a whole. Attorneys in another state could have delayed filing an appeal with the U.S. Supreme Court, adding weeks or months to the timeline. But the lawyers in all four states quickly decided to work as a group and appeal together to the Supreme Court. The problem was time.
There were only a handful of months left in the Supreme Court’s term. The lawyers studied the court’s calendar and, counting backward, discovered that to get the case considered by the end of the court’s term in June 2015, they would need to file four legal briefs within days, one for each state. Then, if four of the nine Supreme Court justices wanted to take up the issue, one, some, or all of the cases would move forward to a full-fledged hearing.
Over the next seven days, Al, Susan Sommer at Lambda Legal, and the legal team at the ACLU drew up a lengthy petition that summarized the birth and death certificate cases in Ohio.
In Tennessee, lawyers immediately reached out to Doug Hallward-Driemeier, a former assistant to the U.S. Solicitor General who had argued 14 cases before the Supreme Court. He later became the head of the appellate and Supreme Court division in the Washington, D.C., office of his law firm, Ropes & Gray. A Harvard Law School graduate, the forty-seven-year-old attorney and Rhodes scholar had always been drawn to the intellectual side of law. In an appeal, the facts of a case were already established and Hallward-Driemeier could scour trial transcripts looking for legal errors and the opportunity to develop new, novel arguments only briefly explored in lower court. He had plenty of experience, having presented appeals before every federal circuit court in the country.
The lawyers from Tennessee wanted Hallward-Driemeier to help draft their petition to the Supreme Court. Though he had never been a lead counsel on a gay rights case, he had drafted a “friend of the court” brief supporting Edie Windsor for a group of progressive organizations that included the Anti-Defamation League.
“Absolutely,” he replied when one of the Tennessee lawyers called. “Let’s do this.”
Early on November 14, eight days after the Sixth Circuit ruling, Al and his team filed their petition with the Supreme Court. Lawyers in Tennessee and Michigan filed their own petitions later that day. On November 18, a legal team that included Shannon Fauver and Dawn Elliott filed a petition for Kentucky.
Jim Obergefell could barely sit still. He created an e-mail file folder called “SCOTUS,” short for the Supreme Court of the United States, and posted on Facebook: “I’m not sitting down or shutting up until equality is the law.”
He had made a promise to John, and he would see it through right to the end.