THE BEAT cop with eighteen years on the police force had taken to wearing pink lipstick and nail polish, and now he sat in Al Gerhardstein’s law office, wondering whether his sudden demotion was grounds for a federal discrimination lawsuit. Philecia Barnes had still been Phillip Barnes in the summer of 1999 when he failed the probationary period for new sergeants at the Cincinnati Police Department, despite a history of good reviews.
“You are being mistreated,” Al told the soft-spoken officer, who was transgender and would seek counseling for sexual identity issues. “We’ll do the best we can to come up with an argument to represent you, but don’t be surprised if we’re not successful.”
It had been nearly two years since the Sixth Circuit’s ruling on Issue 3, and Al was still steaming over a decision that he believed had been fueled more by intolerance than law. He had searched for some kind of legal workaround long after the loss in court, but Cincinnati was now the only city in America with a charter that expressly prohibited anti-discrimination laws on the basis of sexual orientation. Al looked at his new client, who had a degree in social work, and said, “The law is terrible.”
But Al pushed forward anyway. In February 2003, after Phillip Barnes transitioned to a woman and changed her name to Philecia, Al and his forty-one-year-old law partner, Jennifer Branch, took the case to trial. There were forty potential jurors, mostly white and mostly from rural, southern Ohio communities. Looking at their faces, Al thought about the lawyer friends who had told him again and again that there would be no sympathy for an African American transgender police officer in the city of Cincinnati.
As Al sized up the potential jurors, he remembered Judge Cornelia Kennedy’s unexpected questions about homosexuality during the Issue 3 hearing in the Sixth Circuit. This time, Al would attack the issue head-on. He turned to the jury pool and said, “This case raises sensitive issues about gender, sexual orientation, and perception. . . . Rate yourself on a scale of one to five, one being accepting and five being unaccepting.”
Only a handful of people said five.
Surprised, Al continued, “If you had a choice of where you would work and live, assuming it’s all safe, and one choice was a community of people that shared your religion, lifestyle, and values and the other choice had people who did not share your religion, lifestyle, and values, would you want to live in the same community or a different community?”
Most people in the jury pool responded, “Different.”
The trial lasted for eight days. On the last day, Al stood before jurors and said, “This case is really about holding government accountable. We give government a lot of power in this country. It’s only through trials like this that citizens sitting as jurors can make sure that government itself follows the law.”
The jury deliberated for six hours before siding with Barnes, awarding her $320,000 in compensation and reinstatement as a sergeant. The decision energized Al, and when he heard about a small group of clergy and activists who were quietly exploring ways to repeal Issue 3, he decided to get involved for a second time.
He went to a meeting to describe the way jurors had responded to Philecia Barnes. “We think minds have changed,” Al told the group.
A ragtag group of organizers had started meeting in secret in those early months of 2003, wary that word of a repeal effort would instantly rally the coalition that had fueled Issue 3. The most prominent group, Citizens for Community Values, had recently reached out to Cincinnati’s schools superintendent about the “legal liability associated with homosexuality education in public schools.”
“It is our hope that you, who have been entrusted with the education and care of children, will carefully consider the numerous negative physical, mental and emotional consequences directly related to homosexual behavior,” Phil Burress wrote in a two-page letter.
Those first few meetings about the Issue 3 repeal effort seemed more like prayer sessions than strategy sessions to attorney Scott Knox. Overturning the law would require hundreds of thousands of dollars and an unprecedented call to action by the gay community and its supporters. They would have to kill the law the same way it had passed a decade earlier, through a voter initiative that changed the city’s charter. It was an ambitious plan with bad timing: Massachusetts was on the verge of becoming the first state in the country to allow gay couples to marry, and conservative groups were pushing voters in a series of states, including Ohio, to pass constitutional amendments that banned same-sex marriage.
In a local reverend’s living room, Knox huddled with a real estate developer, a rabbi, a philanthropist, and a demographer from Procter & Gamble, which worried that Cincinnati’s conservative reputation was scaring away top scientific talent. There was also a twenty-four-year-old Catholic man, estranged from his parents, who had discovered in college how it felt to drive change.
Chris Seelbach had grown up an only child in a middle class, postwar neighborhood in Louisville, the fair-haired son of a construction equipment supplier who coached the local baseball and soccer teams. The day after Seelbach graduated from Catholic high school, his mother sat him down in the family’s great room and said, “Please tell us you’re not gay.” Seelbach fled the house, past a two-and-a-half-foot wooden cross hanging in the entryway. A few hours later, he met his mother in the parking lot of a local church and said out loud for the first time, “I’m gay.”
Seelbach called a crisis hotline and spent his last summer at home in Christian counseling, sitting through “conversion therapy” for homosexuals. He left for Xavier University in Cincinnati lonely, exhausted, and worried about his parents, whose silence that summer had turned a happy house into a place of strangers. How could I do this to them? They’ve done everything right.
In college, Seelbach and his parents rarely spoke, and though they sent money for tuition, Seelbach took odd jobs to help support himself. But he found his voice on campus, convincing the student body to sign on to an anti-discrimination policy for gay students and teachers and helping to create a gay-straight alliance at the Catholic university.
Seelbach was in law school when he heard about the Issue 3 repeal effort and decided to attend a meeting in the basement of a Presbyterian church. A plan emerged. While Al drafted the repeal language that would be put before voters during the general election in November 2004, organizers would rally support from bank presidents, corporate executives, and the Archdiocese of Cincinnati. Seelbach and hundreds of volunteers would go door to door. “You have to say the word gay,” organizers instructed during hour-long training sessions. “Practice saying the word gay.”
Seelbach canvased the city, asking, “Do you think someone should be fired because they are gay or lesbian? Do you think someone should be denied a place to live?” Over time, he knocked on five thousand doors.
The Cincinnati Enquirer would later call the effort “the most sophisticated grassroots political campaign in the city’s history.”
Right up until midnight on November 2, until the television newscast announced the results and the bar packed with campaign volunteers erupted in cheers, Seelbach was still preparing for a loss.
But Cincinnati voters overturned Issue 3, a decade after it had become law.
Outside, crowds of supporters started cheering in the streets. Inside, Seelbach hugged strangers and friends, proud of his city, proud of himself. We actually won something, he thought. Scott Knox, who had stopped counting how many times he stood on front porches saying the word gay to grandmothers and religious folk, shouted into the crowd, “This really worked!”
Two nights later at a celebration at the Unitarian church, hundreds of people lit candles. Every seat was taken and dozens squeezed shoulder to shoulder in the aisles and lobby, just beyond a long Tiffany window. Reverend Sharon Dittmar, who had a master’s degree from Harvard Divinity School, stood in front of the room and said, “Rest in the victory that many of you never thought you would see. Celebrate this victory.”
But that same election, when Cincinnati voters overturned Issue 3, the voters of Ohio had passed a constitutional amendment that banned same-sex couples from marrying. Voters in all eleven states with anti-marriage campaigns had approved the bans, a painful blow to the gay rights movement.
Al wanted to celebrate the defeat of Issue 3, one of the most divisive laws in the history of Cincinnati, but his thoughts drifted to Ohio’s new marriage ban and the 3.3 million people who had supported it. The law not only prevented gay people from marrying, but also from having their marriages recognized even when they had been legally performed in other states. Al wasn’t entirely sure what that meant or how it would affect gay couples, which is why, looking back, Reverend Dittmar’s words at the church celebration that chilly November evening seemed particularly telling.
“The arc of the universe,” she said, “must be at least long enough to include a party, lots of sleep, an unredeemable novel, even several of them, a vacation, and staring at the ceiling for no reason—before we begin again.”