STEPHEN OLDEN first met Al Gerhardstein in a dump of a law office, where roaches scampered up the walls and across the metal desks and a wheezing air conditioner could never quite cut the humidity on August afternoons. Olden had graduated from Boston College Law School and was practicing consumer law at Cincinnati’s Legal Aid Society. He worked next to Al in a converted public-housing apartment in the city’s west end, counseling indigent families whose stories over time became a sorrowful blur of abuse and desperation. Olden stayed long after Al moved on, but the two young lawyers swapped legal strategy on Saturday mornings, hunched over Al’s vegetable garden picking tomatoes, zucchini, and green peppers.
When winter came in 1994, Olden didn’t hear much from his friend. Al was preparing to defend Judge Spiegel’s decision before the Sixth Circuit Court of Appeals, considered by some one of the most conservative federal courts in the country. A win would help shape national precedent, delivering a major victory to the gay rights movement at a time when other cities were considering similar laws that banned protections for gays. But Olden was worried about his hard-charging friend, who was working long hours without pay and seemed to consider himself singularly responsible for the well-being of Cincinnati’s beleaguered gay community.
From the very beginning, Olden knew that Al was driven by a visceral sense of right and wrong, an instinct so deeply rooted in his gut that there was never much room for doubt or second thought. Once, years earlier, Olden had slipped into the back row of a federal courtroom to catch the final moments of a drug product liability trial that had brought big-name attorneys to Cincinnati. He decided to leave early to walk back to the office, but in the hallway outside the courtroom, a federal marshal placed a firm hand on Olden’s shoulder and said, “I’m under orders to detain you.”
Olden flinched. “You’ve got to be kidding.”
“You left the courtroom during closing arguments.”
“But there’s nothing criminal about that,” Olden insisted as he was pushed toward a holding cell for prisoners in the upper level of the federal courthouse.
The room, with steel bars and a narrow metal bench, smelled of disinfectant. Olden handed over his wallet and briefcase, eyeing the telephone on the wall and briefly thinking about the dozens of inmates he had represented in crowded, crumbling prisons. “Can I at least call a lawyer?”
Al picked up the line. “I’ll be right there,” he told Olden, then yelled over his shoulder, “Holy shit!”
The detainment order had come from Judge Carl B. Rubin, who had been nominated to the federal bench in 1971 by President Richard Nixon. He was considered fair but unflinching, setting strict rules for the lawyers who argued in his courtroom. Olden had been in Judge Rubin’s court before and gasped when the judge’s law clerk showed up in the holding room and said, “Just so you know, you’ve been charged with contempt.”
At the beginning of the day, the clerk explained, Judge Rubin had warned spectators at the liability trial not to leave the courtroom while the attorneys were delivering closing arguments. Olden had come in later and didn’t get the warning. The clerk just shrugged.
During the lunch break, Judge Rubin had decided to weigh the matter in the building’s largest and most ornate courtroom, typically used by judges on the Sixth Circuit Court of Appeals. Al showed up just as the impromptu hearing was about to begin, breathing hard from his sprint to the courthouse. Olden wasn’t sure what to expect from Al, who argued most of his civil rights cases in federal court and likely wouldn’t be too keen on aggravating a veteran judge.
Judge Rubin glowered from the bench and announced that Olden had violated the rules, leaving the courtroom while attorneys were speaking.
“With all due respect, Your Honor,” Olden replied. “I wasn’t aware of your rule.”
The judge frowned.
Al stood up and said sternly, “Your Honor, this hearing is totally unnecessary. Mr. Olden did nothing wrong.”
Al suggested that the judge could have simply pulled Olden aside and asked for an explanation rather than detaining him in a holding cell and threatening contempt charges. The judge relented and asked Olden to write a letter of apology.
Over burgers at a grill just down the street from the courthouse, Al asked casually, “Hey, do you think we can sue this guy?”
Olden was still reeling from the morning’s events and at first wasn’t sure whether he understood Al’s question.
“If he acted outside his jurisdiction, there may be a cause of action against him,” Al continued.
Olden knew that federal judges had immunity when they were acting in a judicial capacity on matters within their jurisdiction. He also knew that Judge Rubin was highly respected and that Al’s cases hinged on decisions in federal court. “Probably no case here,” Olden said, shocked that his friend would even consider suing.
Al’s bold question stuck with Olden for years, and he wasn’t the least bit surprised when he learned that Al had taken on the powerful coalition that had successfully banned all laws meant to protect the gay community from discrimination.
Olden often thought about Al and his big case before the Sixth Circuit throughout that long winter, through Thanksgiving and Christmas and New Year’s, when it seemed all of Cincinnati was waiting to find out how an influential panel of judges would define what it was like to be gay.
Some of the most successful civil rights cases have started with a story.
One came from Topeka, Kansas, in the 1950s, when a black railroad welder couldn’t understand why his daughter had to ride the bus to a segregated school when a perfectly good one, filled with white students, was only blocks away. Another came from San Francisco in the 1970s, when Chinese American parents told the courts that their children were languishing in public schools, unable to learn because they didn’t speak English.
Before Judge Spiegel in district court, Al had told the stories of gay plaintiffs like Roger Asterino, a forty-three-year-old city worker who had been mocked by a colleague at work. But arguing in an appellate court was different. There would be no witnesses to query, no easy way to bring stories to life. Attorneys were there mainly to answer questions posed by the judges, and Al knew that the best appellate lawyers listened carefully, answered succinctly, and guided the conversation back to their most convincing arguments.
There were more than twenty judges on the Sixth Circuit, one of thirteen circuits in the United States courts of appeals. Most were assigned to large geographic regions and all had substantial influence on federal law. The Sixth Circuit decided cases from Ohio, Michigan, Tennessee, and Kentucky in the same federal courthouse where Al had defended his friend Steve Olden.
Cases were randomly assigned to three judges, and for weeks Al waited to find out whether the panel that would oversee Issue 3 bent right or left, though he knew that political leanings were never an absolute indication of how a case would play out.
Luck of the draw, Al thought grimly, when he learned ten days before the March hearing that two of the judges assigned to the case had been nominated to the bench by President Ronald Reagan. The third judge, Cornelia Kennedy, had been nominated by President Jimmy Carter despite criticism from left-leaning groups. Twice, Reagan had considered Judge Kennedy for a seat on the U.S. Supreme Court.
Nine months after Judge Spiegel declared Issue 3 unconstitutional, the three judges called the hearing to order.
Al had always loved the grandness of the Sixth Circuit courtroom, with its red silk drapery and walnut-colored walls carved like lattices. He sat next to Scott Greenwood and their two cocounsels from Lambda Legal, just across the way from Michael Carvin, who would speak first. “What they’re saying here is: It’s wrong for the people to make a perfectly constitutional decision,” Carvin told the judges.
Al countered, “This case is about the right of each citizen to full and equal participation in the political process.”
Al talked about the hearing before Judge Spiegel, who had decided that gays were an identifiable class, often maltreated and in need of legal protection. Minutes into his comments, Judge Kennedy, the second female judge to sit on the Sixth Circuit, cut in. “It’s pretty hard to identify in any individual, is it not?” she asked about homosexuality. “. . . How are we even going to identify who they are?”
The question surprised Al, who paused briefly. “Your Honor, for what purpose?”
“Well, for any purpose,” Judge Kennedy said. “. . . It isn’t something that you can look at and determine when you first look at people. . . . We have an identifiable class here that would be almost impossible to identify. We have estimates that they range from 3 percent to 15 percent [of the population], which indicates an inability to determine who belongs to the class.”
Years would pass and Al would remember the impulse he had at that precise moment, an overwhelming need to turn to the people around him in the courtroom and ask, “Will everyone who is gay please stand up?” He knew there would be a cross-section of the most ordinary-looking people, including Scott Greenwood, with his leather briefcase and law degree.
Al replied, “The record is real clear that whether you can identify a gay person on an individual basis or not, gay people in this country are the group that a lot of people don’t like. . . . There’s a widespread prejudice of gays, and that has expressed itself even to the point of excessive violence.”
The hearing was unsettling, and Al wasn’t surprised when the Sixth Circuit, on May 12, 1995, overturned Judge Spiegel’s decision by unanimous vote, becoming the highest court in the country to validate the exclusion of gays from anti-discrimination laws. “The reality remains that no law can successfully be drafted that is calculated to burden or penalize, or to benefit or protect, an unidentifiable group or class of individuals whose identity is defined by subjective and unapparent characteristics, such as innate desires, drives and thoughts,” the judges wrote.
They also noted that Issue 3 furthered a “litany of valid community interests,” including the removal of possible sanctions against anyone “who elected to disassociate themselves from homosexuals.”
Michael Carvin told the New York Times, “In my view, this is a victory for democracy, a victory for the right of local communities to decide this controversial issue for themselves.”
Al had lost plenty of cases, but the language in the Sixth Circuit’s decision seemed unusually harsh and unsympathetic. “The opinion is miserable,” he wrote to his cocounsels. “It made me sick to read it.”
Judge Spiegel had ordered the City of Cincinnati to reimburse Al and his three cocounsels a total of $375,000 to cover their time and expenses, but the judges on the Sixth Circuit panel overturned that order, too, which meant that if Al and his legal team wanted to appeal the ruling, they would have to continue working without pay. From his office at the Cincinnati Legal Aid Society, Steve Olden called his friend. “The Supreme Court is going to turn this around,” Olden promised.
From the beginning, there had never been any question that Al would take the case to the U.S. Supreme Court, and all that summer, he started drafting and redrafting a petition to appeal. He had ninety days to craft nine thousand words that would convince the highest court in the land to hear the case. The Supreme Court at the time received about 6,500 appeals a year, but accepted only about ninety cases for oral argument. If the court rejected Al’s petition, there would be no further recourse. Issue 3 would stand.
In August, shortly before the Supreme Court deadline, Al heard from the attorneys at Lambda Legal. They had worked together for months, but now the national organization wanted to take the lead in the case. Al was stunned.
“We do not agree to this change,” he wrote. “. . . Our Cincinnati clients—the folks that have to live with Issue 3—continue to be reassured that Cincinnati counsel are coordinating their presentation.”
Lambda Legal attorney Patricia Logue replied, “There are . . . much greater stakes for lesbians and gay men generally that are not limited to the impact on our Cincinnati clients.”
Al and Scott Greenwood had decided early on to bring in national experts from Lambda, which had spent years advocating for the rights of the gay community. But Al always believed he would manage and lead the lawsuit. It was new and sticky terrain, a local lawyer with a national case and a skilled advocacy group that wanted to make sure it was done right. The legal director for Lambda Legal relented a few days later.
“I want to win our case,” Al wrote. “I know you do, too.”
He would remember the brief skirmish when he took on another gay rights case from Cincinnati that seemed poised to reshape federal constitutional law, this one filed in the name of Jim Obergefell and his dying husband, John.
Al and Mimi had always liked the Cincinnati Nature Center, on the edge of a deciduous forest with monarch butterflies and a pond full of turtles. Cherry trees bloomed in the spring, and every fall, the leaves on the oak and maple trees turned fiery red. In May 1996, after three years of work on the Issue 3 case, Al took the day off to spend time with Mimi, hiking along miles of winding trails. They had been married for more than twenty years, living at times off Mimi’s meager teaching salary so Al could pursue civil rights cases entirely on contingency.
In the car on the way home, there was news about the Supreme Court. Al tensed and turned up the radio, glancing quickly at Mimi, who more than once had finished family vacations alone when Al left to tend to legal emergencies. He didn’t want work to creep into their final few moments together, before three kids, the family dog, dinner, and homework shattered the easy silence. But two months earlier, the Supreme Court had “held” the Issue 3 appeal because a similar appeal had come out of Colorado, where all branches of government were prohibited from passing anti-discrimination laws for gays.
Al jumped in his seat when National Public Radio announced that the Supreme Court had struck down Colorado’s law. Justice Anthony Kennedy, raised Irish Catholic and nominated to the court by President Reagan, broke ranks to side with the more liberal judges, writing in a majority opinion that the ban in Colorado lacked any legitimate governmental purpose. “It is not within our constitutional tradition to enact laws of this sort,” he wrote.
It was the single biggest victory in the history of the gay rights movement to date and seemed to hint at the beginnings of a shift on the Supreme Court, which had found only a decade earlier that laws criminalizing sodomy were constitutional. The decision in Colorado would immediately undercut similar initiatives across the country, including Issue 3. “This is really just totally exciting,” he said to Mimi, fighting the urge to call Scott Greenwood and his cocounsels.
Mimi nodded and smiled. She had been following the case since the beginning and wanted Al to win, but looking at her distracted husband after a long afternoon away, she thought, Does this always have to happen when we’re having a good time?
Less than a month later, without calling for a hearing, the Supreme Court sent the Issue 3 case back to the Sixth Circuit for reconsideration. “You’ve got a second shot,” Steve Olden told Al that fall. “They can’t turn you down now. The Supreme Court is on your side.”
Al flew to Lambda Legal headquarters in New York to rehearse what he would say during his second appearance before the Sixth Circuit. This time, he would set up two three-foot posters—one showing the wording of the Colorado amendment, which had been declared unconstitutional, the other of Cincinnati’s Issue 3. Al highlighted and underlined the identical words and phrases.
When he walked into the courtroom in March 1997, Al was feeling bold and hopeful for the first time in months. Michael Carvin could sense the change in Al’s demeanor. “Ninety-nine percent of the country,” Carvin would say later, “would have confidence” after the Supreme Court’s decision on Colorado.
But the same panel of judges overturned Judge Spiegel’s ruling for a second time, delivering an entirely unexpected win to the backers of Issue 3. Al and his legal team immediately appealed to the Supreme Court, rushing copies of the petition to the courthouse in Washington, D.C. Weeks passed with no word from the court, lousy, meandering days spent waiting in a law office stacked floor to ceiling with research on homosexuality. Finally, Al received a letter from the Supreme Court.
The justices declined to take the case.
The decision was so crushing, so final, that Al could barely catch his breath. As he drove around town to all the familiar places, to the courthouse, to the nature center, to schools and shops, Cincinnati seemed like an oddly foreign place, an enclave of intolerance that had allowed a backward measure to exist and thrive, embedded in the city’s charter.
Civil rights cases were never easy wins, but Al felt as if his faith in the law had been shaken to its core, and he wondered whether he could keep on. The country’s legal system, predicated on precedent, didn’t seem to apply to the gay community. Al was forty-seven and had spent nearly five years working on the case without pay. He thought about packing up and leaving Cincinnati, maybe becoming a law professor in Mimi’s hometown of St. Paul. Al would be closer to his father-in-law, Judge Gingold, who kept a neat stack of Al’s legal briefs in a cardboard box.
“Justice just didn’t happen here,” Scott Knox told Al. “You did everything you could.”
The dinner table in the Gerhardstein household was usually a happy place, with one kid awarded the “you are very special” plate for a birthday, or a celebration for a win on the baseball field or an extra A on a report card. But Al was sullen and distant, and Jessica, in seventh grade, knew without asking that something was terribly wrong with her father. She looked at Mimi, who said carefully, “Daddy doesn’t always win.”
It seemed to Al as if there was nothing to celebrate, but a few months after the decision, he got an invitation from his church. For years, Al and Mimi had been taking their children to the First Unitarian Church of Cincinnati, in a historic stone chapel with wooden pews that flashed blue, gold, and pink when the sun settled behind the stained-glass windows. Many of Cincinnati’s more liberal thinkers showed up for services, including Steve Olden and his family and Al’s longtime law partner, Robert Laufman.
Olden and public relations executive Linnea Lose, who had joined the church as its first openly gay congregant twenty years earlier, had decided to write to the Unitarian Universalist Association in Boston, describing Al and his work on Issue 3. The president of the association wrote back, and over an annual congregant lunch in the church’s multipurpose room, his letter was read out loud. “Like most work of dismantling oppression, there are roadblocks and setbacks. The task of true faith-based anti-oppression work is to keep struggling for justice and to persevere even in adverse times. You and your work are testimonies to this process.”
Members of the church started applauding, and Al was called up to the podium and asked to speak. It was the first time he was publicly recognized for his work on the case, and Mimi choked back tears as she looked at her husband, who, no matter what anyone said, considered himself singularly responsible for the defeat in court. Finally, she thought, validation after years of grueling, unpaid legal work.
Al shifted from foot to foot, looking at Mimi and the members of his church, who were cheering and shouting his name. For a few seconds, he just stood there, weeping. “Boy,” he finally said, with a brief, grateful smile, “I never got an award for losing anything in my life.”