Then Comes Marriage

by Roberta Kaplan

  As amazing as all this was, however, those of us fighting for LGBT equality still had, to paraphrase Jimmy Cliff, a few more rivers to cross. We still had to secure the right to gay marriage in all fifty states. Lawyers began filing suits in courts across the country. When I got a call in October 2014 from some lesbians I had met in Asheville, North Carolina (Diane Walton, Meghann Burke, and Jasmine Beach-Ferrara, who run the Campaign for Southern Equality), about filing a case on behalf of gay couples in Mississippi, I jumped at the chance. (And yes, for those of you who don’t know it yet, there really is such a thing as the “lesbian mafia.”)

  Rebecca (Becky) Bickett and Andrea Sanders live on the coast in southern Mississippi and have been a couple since meeting in the aftermath of Hurricane Katrina in 2005. They are the parents of twin one-year-old boys. Carla Webb and Jocelyn (Joce) Pritchett of Jackson, Mississippi, were legally married in Maine in 2013, though the state of Mississippi did not recognize their marriage. They also have two children, a boy and a girl. In November 2014, we filed suit in the U.S. District Court for the Southern District of Mississippi on behalf of these two couples.

  As we had done with Edie, we pressed for an aggressive schedule in the Mississippi case. I wanted to get our case to the appellate level at the Fifth Circuit Court of Appeals as soon as possible since I knew that two other cases (one from Texas and one from Louisiana) had been decided at the district court and were already on appeal to that court. We drafted our initial motion papers seeking a preliminary injunction in a New York minute, filing them with the court within a week of taking the case.

  Less than a year and a half had passed since the Windsor decision, but the differences in terms of legal precedent were profound. For one thing, nearly every single case we cited was a post-Windsor decision that had explicitly relied on Windsor. Despite the rush, I honestly don’t think I ever had so much fun drafting a brief in my entire life. For a law geek like myself, it was like recording our own post-Windsor greatest hits album. We opened the brief with a description of what had happened since June 2013:

  Since Windsor, more than forty federal district courts and four circuit courts have held that the U.S. Constitution requires that gay people be allowed to marry; only one federal circuit court and two district courts have held to the contrary. This remarkable degree of consensus among the courts is no coincidence—it is mandated by the logic and language of Windsor, which enshrine and repeat the unique protections our Constitution affords minority groups from discriminatory treatment.

  The Mississippi case was assigned to Judge Carlton Reeves. Appointed by President Obama in 2010, Judge Reeves was only the second African American federal judge in Mississippi. His father was in the military, and the family moved often before Judge Reeves was born. In 1968, the family moved back to their original home in Yazoo City, Mississippi, where Judge Reeves attended public school.

  Although I very much hoped that Judge Reeves would see discrimination against gay people as a civil rights issue, I continued to be wary of trying to make any direct comparisons between the struggle of African Americans and the struggle of LGBT Americans. There were too many significant differences, including the obvious facts that gay Americans had never been denied the right to vote or had to endure Jim Crow. As I explained to Judge Reeves at oral argument: “Thurgood Marshall when he litigated these cases as a young man was literally worried every day he was going to get killed. I’m not aware of any attorney litigating any LGBT civil rights case who has faced anything like that.”

  But as it turned out, I need not have worried since Judge Reeves was happy to make the point for me. At the oral argument on November 12, 2014, he brought up the landmark Supreme Court decision of Brown v. the Board of Education:

  What’s your response to Brown v. Board of Education and the Supreme Court putting a proviso in that . . . [the] states . . . would [have to] implement Brown with “all deliberate speed?”

  (The Supreme Court, concerned about the reaction in the states, had used this phrase “all deliberate speed” to send a message to the states that they did not have to rush toward integration.)

  At the time of Judge Reeves’ query, I actually misunderstood where he was going. I thought he was concerned about what would happen in Mississippi if a federal judge ordered the state to allow gay couples to marry. For that reason, I responded:

  That was clearly done by the Supreme Court at the time out of a fear, whether legitimate or not, probably legitimate, that there would be so much social unrest. . . .

  In this context, there’s no issue. Gay people have been married in Massachusetts now for ten years. Now, I concede that the Commonwealth of Massachusetts is different from the state of Mississippi. But there’s been no rioting on the streets of Massachusetts. There’s been no social unrest in the state of Massachusetts. Indeed, as we cited in our reply brief, rates of divorce in Massachusetts have gone down over the last ten years.

  It soon became clear, however, exactly what Judge Reeves meant by his reference to “all deliberate speed,” and it was the opposite of what I had been thinking. In a moving description of his own experiences growing up as an African American public school kid in the Mississippi Delta, Judge Reeves came back to the issue later in the oral argument when Justin Matheny, one of the attorneys representing the state of Mississippi, was at the podium:

  [I]t was 1954 that Brown was enacted and in Mississippi it was 1970 before my first-grade class was integrated . . .

  So doesn’t the court have some responsibility to maybe not wait and see? Because we may be here in 2031. We may be here in 2131. . . . [W]hat guarantee is there that the political process would work its way through in what I might consider or what the courts might consider to be a timely fashion?

  This may have been the most powerful question I have ever heard from a judge at an oral argument. Listening to Judge Reeves, I couldn’t help but think how extraordinary it was to be sitting there in that courtroom in Mississippi, where so many civil rights battles had been fought, listening to an African American federal judge describe his own experience with the consequences of the Supreme Court’s action (or inaction). But as Judge Reeves later explained in his decision (quoting William Faulkner), “The past is never dead. It’s not even past. That is as true here as anywhere else.”

  As a practical matter, none of the arguments we were making or that were being urged by the state of Mississippi were different from the arguments that James Esseks and I had made in the New York marriage case a decade before. I made the same argument about my clients that I had in Albany in 2006:

  My clients Becky Bickett and Andrea Sanders, Joce Pritchett and Carla Webb are all here today with their families. All they want is to be treated like everyone else. What they want for themselves and their children is a right that most people take for granted. By treating straight families one way and gay families another way as if they were inferior or second class, the State of Mississippi discriminates against gay people and their families; and the consequences of that discrimination are profound.

  For example, if, God forbid, one of my clients were to get critically sick tomorrow, it is not at all clear that her spouse or partner would be able to visit her in the hospital or to make important medical decisions about her treatment if she is unable to do so. When it comes time for my clients to pay their taxes, they have to go to the trouble and expense of preparing two sets of returns. And they cannot get, of course, the tax deductions that are available to straight married couples in Mississippi.

  And perhaps most obviously and most importantly, Becky and Andrea’s 15-month-old twin boys and Joce and Carla’s children, a six-year-old girl and a two-year-old boy, do not have two legal parents who are married under the laws of the state in which they live. That’s important because of the many concrete rights and benefits that children enjoy when their parents are married.

  But it’s also important in another sense, namely, in the sense that the dignity and self-worth of these kids is demean
ed or, in the words of Justice Kennedy, humiliated daily by having to grow up in a state that tells them through its laws that their family is inferior. To use a fancy legal phrase from New York City, that’s just plain wrong.

  When Judge Reeves released his decision, it became clear that what had truly changed in the intervening years since our 2006 loss was not the arguments of counsel, or even the way that we articulated them, but the ability of judges to hear them.

  In reviewing the arguments of the parties and conducting its own research, the court determined that an objective person must answer affirmatively to the following questions:

  Can gay and lesbian citizens love?

  Can gay and lesbian citizens have long-lasting and committed relationships?

  Can gay and lesbian citizens love and care for children?

  Can gay and lesbian citizens provide what is best for their children?

  Can gay and lesbian citizens help make their children good and productive citizens?

  Without the right to marry, are gay and lesbian citizens subjected to humiliation and indignity?

  Without the right to marry, are gay and lesbian citizens subjected to state-sanctioned prejudice?

  Answering “yes” to each of these questions leads the court to the inescapable conclusion that same-sex couples should be allowed to share in the benefits, and burdens, for better or for worse, of marriage.

  Judge Reeves handed down his seventy-two-page opinion (more than two times longer than our brief) late in the afternoon on the Tuesday before Thanksgiving. In it, he powerfully surveys the history of discrimination against African Americans in Mississippi, the history of such discrimination against LGBT Americans, and the distinctive nature of homophobia. Judge Reeves discusses at some length the story of longtime civil rights organizer Bayard Rustin, who helped guide the Montgomery bus boycott and who was specifically targeted for being gay. As Judge Reeves explains:

  The most interesting part of Rustin’s story, though—and the reason why he merits more discussion here—is that he was subjected to anti-gay discrimination by both white and black people, majority and minority alike. . . . Rustin’s story speaks to the long tradition of Americans from all walks of life uniting to discriminate against homosexuals. It did not matter if one was liberal or conservative, segregationist or civil rights leader, Democrat or Republican; homosexuals were “the other.”

  Judge Reeves’s decision was released as we were in our car fighting our way through the pre-Thanksgiving traffic on I-95 to get to Rachel’s mother’s house in Rhode Island for the holiday. Because I was driving, Rachel read the entire opinion to me from her iPhone. Not only did we fully comply with the applicable antitexting laws, but it was probably the best four-hour drive of my life.

  AS EXPECTED, THE state of Mississippi immediately appealed Judge Reeves’s decision, and our case moved up to the Fifth Circuit, where Mississippi obtained a stay. Two other gay-marriage cases, one from Texas and one from Louisiana, would be heard by the Fifth Circuit on the same day as ours, before a panel of three judges: Judge Jerry Smith, a conservative whose vote we knew we most likely couldn’t get; Judge Patrick Higginbotham, a Reagan appointee who had been on the bench for more than three decades, and Judge James Graves, who, like Judge Reeves, was also an Obama-appointed African American judge from Mississippi. Oral arguments were scheduled for Friday, January 9, at the federal courthouse in New Orleans.

  Josh Kaye and I flew to Houston in advance of the argument to meet with attorneys in the Texas case, De Leon v. Perry, and compare notes. Not wanting to miss an opportunity to go on an eating tour of the Deep South, we drove from Houston to New Orleans in a rental car, stopping along the way to sample the local cuisine of crab étouffée and fried catfish, not to mention the almost superhuman number of oysters consumed by Josh. As we drove, Josh and I used the time to prepare for what I knew would probably be the last marriage equality argument of my career by “mooting” the case. Josh would ask me the hardest questions he could think of and we worked to practice my answers, as Louisiana Cajun country whizzed by.

  The Fifth Circuit would hear arguments in each of the three cases separately, with Louisiana going first, followed by Mississippi, and then Texas. As I listened to the three judges asking questions during the Louisiana oral argument, it seemed pretty clear to me that, as expected, Judge Smith was not likely to vote our way. But the other two judges seemed far more open to the marriage equality arguments that the Lambda attorney, Camilla Taylor, was making.

  When it was my turn to argue, I felt none of the jitters I had experienced when I began my argument at the Supreme Court. This was not my first time arguing before a circuit court and I certainly knew this area of the law. While I still didn’t want to make any direct analogies to the civil rights movement, I kept thinking about the crucial role that had been played by judges in this very courthouse. I really couldn’t help myself. So I confidently walked up to the podium and said, “Good morning, Your Honors. May it please the court. I am delighted to be down here in New Orleans. I apologize for bringing our cold weather with us. And it’s an honor to be arguing this case in the John Minor Wisdom courthouse.”

  I had chosen these words carefully. In 1994, the Fifth Circuit courthouse was renamed to honor John Minor Wisdom, a judge who served on the court from 1957 until his death in 1999. Judge Wisdom was one of the “Fifth Circuit Four,” renowned for his landmark decisions implementing desegregation in the wake of Brown v. Board of Education. During the 1960s, despite sometimes violent opposition, Judge Wisdom courageously issued opinions ordering integration at the University of Mississippi, eliminating racial discrimination in jury selection, and striking down barriers to voter registration in Louisiana. As the New York Times reported on his death at age ninety-four in 1999, Judge Wisdom was one of a “handful of remarkable men who prevailed by meeting the demands of the times with an innovative and creative judicial response that restructured an unjust social order and helped shape the nation in a second reconstruction and left a permanent imprint on American history.”

  By opening with a reference to Judge Wisdom, I was obviously drawing a link between the historic struggle of civil rights for African Americans and the current struggle for the rights of gay people. And I’m pretty sure that the judges understood exactly what I meant.

  Much of the argument at the Fifth Circuit focused on the 1972 case of Baker v. Nelson, in which the Minnesota Supreme Court had ruled that a law restricting marriage to opposite-sex couples was constitutional, and the Supreme Court had dismissed the appeal as not even raising a substantial issue. When Judge Smith brought up that decision, I responded with the following:

  ME: The world was a very different place in 1972 when Baker was decided. . . . There has certainly been a sea change not only in the law, but in the way gay people live in our society. In 1972, . . . [i]f they wanted to keep a job or be civil to their neighbors, most gay people lived in the closet. We have a very different world today, where there are gay people, like my clients, living openly with their children. . . .

  JUDGE SMITH: Why do you suppose, though, that in light of the specific reasoning and holding in Baker, the Supreme Court said . . . there’s no problem here, nothing to see here.

  ME: Why did they say that in 1972?

  JUDGE SMITH: Yeah.

  ME: Because times can blind, Your Honor. In 1972, . . . it was criminal to be gay in most states in this country.

  “Times can blind.” No matter how many times or how many ways I used Justice Kennedy’s words, it would never be enough. I felt particularly vindicated when, during the oral argument in the Texas case that followed ours, Judge Graves joked, “All this talk about Baker and the seventies is making me nostalgic for my Afro and my 8-track tapes.” It’s hard to imagine a better way to illustrate how dramatically the times had changed than that.

  At one point during my argument, Judge Smith brought up the legacy of Windsor, which led to the following humorous exchange:

 
JUDGE SMITH: What do you think it is in Windsor, and of course I know you’re intimately familiar with Windsor because you tried that case and argued that case.

  ME: I’ve heard of the case, Your Honor. Yes.

  [LAUGHTER]

  JUDGE SMITH: And congratulations to you for your good work there.

  This led Judge Smith to ask me why I believed that the decision in Windsor dictated a pro-equality ruling at the Fifth Circuit. I had spent a lot of time thinking about why so many courts had struck down bans on marriages between gay couples in so many states in the wake of Windsor, so I answered:

  I don’t often find myself agreeing with Justice Scalia on this issue, in this area, but here I have to say I agree with him completely. While the holding of Windsor clearly does not apply to the right of couples to marry under state law under the Fourteenth Amendment, the logic of Windsor does. Because the logic of Windsor . . . says that gay people have dignity that’s equal to everyone else. And once you accept that gay people have the same kind, are equal to everyone else, then all these reasons really make no sense. That’s why you’re seeing this . . . enormous groundswell in the federal courts. Not because it’s a popularity contest, but because when you look at the logic of Windsor, it’s hard to imagine treating gay people in such a discriminatory manner, if you accept the fact that they’re the same as everyone else.

  During my Fifth Circuit argument, I was again very reluctant as a New Yorker to criticize the state of Mississippi:

  ME: I’m not from Mississippi, but Judge Reeves below certainly was, and he was not as optimistic as Judge Sutton in the Sixth Circuit that the democratic process in Mississippi could be relied upon to give gay people their rights under the Fourteenth Amendment. You can read that yourselves. He’s much more of an expert on that than I am.