JUDGE GRAVES: Well we got an amicus brief from members of the Mississippi legislature, didn’t we in this case?
ME: We did. It didn’t predict, if I recall correctly, that they intended to pass equal rights for gay people any time soon.
[LAUGHTER]
Once again, the judges had made my arguments for me. When my time was up, the attorney for the state of Mississippi, Justin Matheny, stood up for his rebuttal. He was at the podium only a brief time, but it involved what was probably the best exchange of the entire day. Matheny argued that time, rather than judicial intervention by the court, would ultimately resolve the issue of discrimination against gay people and that the courts should not step in: “Saying that Mississippi will never change its mind, or it’s not likely to, is not a reason to take away the state’s ability to decide things.”
Judge Higginbotham paused for a moment, ran his hand through his leonine white mane of hair, and, leaning back in his chair, looked down at Matheny from the bench. He then intoned, “Those words, ‘will Mississippi change its mind?’ have resonated in these halls before.”
With this comment, Judge Higginbotham, who had first been appointed to the bench when John Minor Wisdom was still presiding over cases at the Fifth Circuit, clearly and firmly connected African American civil rights and gay rights. Justin Matheny did not reply but simply closed his rebuttal by saying, “The state asks that the court reverse the district court’s preliminary injunction below,” before quickly taking his seat.
After the oral arguments, we all went out for lunch at Herbsaint, a restaurant across Lafayette Square from the courthouse where we gorged on mint juleps, fried oysters, and gumbo. Our clients Carla and Joce were thrilled to be able to meet “Miss Edie” by cell phone when I called to tell her about the argument. On her Facebook post later that day, Joce recalled, “So, we’re sitting at lunch. And Roberta Kaplan says ‘Let’s call Edie! She’ll want to know how it went.’ I’m sitting there in awe watching the incredible Robbie Kaplan tell Edie Windsor that today was all about her name. And then Robbie says, ‘You wanna talk to my Mississippi plaintiff?’ And hands me the phone.”
I was proud to have argued this case in a place where so much civil rights history had been made. Now all we could do was wait and see whether we had persuaded the Fifth Circuit to continue making history.
EPILOGUE
As it turned out, the Fifth Circuit never got a chance to rule. Only a week after our oral arguments in New Orleans, the Supreme Court announced that it would take up the issue of marriage equality once and for all. The justices agreed to hear a group of four cases coming out of the Sixth Circuit, with oral arguments at the end of April.
Although there had been a tidal wave of district and circuit court opinions affirming the equality of gay people under the law as a result of United States v. Windsor, the Supreme Court often chooses not to decide issues for which there is no disagreement among the circuit courts. So even though marriage equality was not yet a reality in all fifty states, the Supreme Court, in October 2014, had declined to grant certiorari in cases from the Tenth, Fourth, and Seventh Circuits covering states such as Utah, Oklahoma, Virginia, and Indiana, since all those courts had agreed that limiting marriage to straight couples violated the Constitution.
The next month, however, the United States Court of Appeals for the Sixth Circuit (covering Kentucky, Michigan, Ohio, and Tennessee) became the first and only circuit court to uphold laws that banned marriages between gay and lesbian couples. I was particularly disappointed when that decision came down, since it involved a case brought by a man named James Obergefell who lived in my home state of Ohio. The silver lining, at least, was that now the Supreme Court had a case to resolve.
Echoing the story of Edie and Thea, Obergefell v. Hodges is also the story of a relationship that spanned decades, a cruel neurological condition, an eventual marriage, and an untimely and heartbreaking death. Jim Obergefell and his longtime partner, John Arthur, had been together for many years, living in Cincinnati, Ohio. Later, Arthur became terminally ill with Lou Gehrig’s disease, or ALS. The couple wanted to be married so badly that they chartered a medical plane to get married in Maryland on July 11, 2013, since they couldn’t then do so in Ohio. Shortly thereafter, Arthur died. Obergefell sued to require Ohio to recognize him as Arthur’s husband on the death certificate.
This was it: the final inning in the struggle for marriage equality in the United States of America. Depending upon how the Supreme Court ruled, either we would have full marriage equality in all fifty states or we would not, which would be a major setback, to say the least.
Behind the scenes, a group of activists connected with HRC, including Chad Griffin and Hilary Rosen, were discussing what we could do to help the new Supreme Court case, Obergefell v. Hodges. Capitalizing on the power of modern technology, Hilary came up with the inspired idea of submitting an unprecedented form of amicus brief to the Supreme Court, the People’s Brief, to be read and signed online by members of the public.
In working on the People’s Brief with law professors Dale Carpenter and Steve Sanders, I couldn’t help but flash back to writing the briefs for the New York marriage case in 2006 and for Windsor in 2013. Although we had come so far, we still had at least one more river to cross. We began with the 1972 case Baker v. Nelson. And then Jaren had another brilliant idea: using Baker v. Nelson on offense, rather than playing defense. As we explained to the Supreme Court: “Forty-five years ago in Minneapolis, two gay men sought a license to marry each other. Not surprisingly, their request was denied. To everyone but them, the recognition that they sought was utterly unthinkable at the time.” Our brief surveyed the dramatic sea change that had occurred since Baker, not only in American society but in the Supreme Court’s own jurisprudence. For example, in the 1986 Bowers v. Hardwick case brought by a “practicing homosexual,” the Supreme Court held that the argument that it was unconstitutional to criminalize sexual relations between gay people was “at best facetious.” Seventeen years later, in Lawrence v. Texas, the Supreme Court held that “Bowers was not correct when it was decided, and it is not correct today.” By 2013, Justice Kennedy observed in Windsor: “It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage.”
We wanted to show that there really was only one reason to explain why Ohio insisted on disregarding Jim Obergefell’s marriage to his late husband:
It is not insignificant that petitioner James Obergefell from Ohio merely seeks to have the state correct the facts asserted on the death certificate of his late spouse, John Arthur. The two men were, in fact, married under the law of Maryland where their marriage was performed. It is absurd to contend that refusing to certify that a decedent was “married” to his spouse at the time of his death could possibly influence child rearing, or the willingness of straight couples to marry, or even offend tradition. But actions speak louder than words. Ohio insists that there must be a blank space on Mr. Arthur’s death certificate where Mr. Obergefell’s name should be. Not content to deny these men the equal protection of the law in life, it also seeks to deny them dignity even in death.
The People’s Brief, submitted to the Supreme Court on March 6, 2015, garnered 207,551 signatories from people in all fifty states. Edie Windsor was the first person to sign. Not surprisingly, two of the states that had the most signatures, Ohio and Texas, were states where gay couples were not yet permitted to marry. When we printed out the final document, it was 3,500 pages long. Making the required fifty copies to be delivered to the Supreme Court took four solid days of printing, and the resulting mountain of paperwork filled nineteen boxes, which were delivered by HRC and Jim Obergefell to the Supreme Court on March 6.
A few weeks later, on April 28, 2015, I sat in a packed Supreme Court courtroom to hear the oral arguments in Obergefell. It felt like old ho
me week for LGBT civil rights advocates at the Supreme Court. Paul Smith (who had argued Lawrence at the Supreme Court) was there, as were Columbia law professor Suzanne Goldberg (who worked on Lawrence while at Lambda), James Esseks, Evan Wolfson, Freedom to Marry campaign director Marc Solomon, Chad Griffin, Fred Sainz of HRC, Ted Olson, Pam Karlan, and many others. Sitting next to each other a few rows behind me were Gavin Newsom, the former mayor of San Francisco who led the way in marrying gay couples in 2004, and Margaret Marshall, the former chief justice of Massachusetts, who first ruled in Goodridge v. Department of Public Health that the core constitutional principles of due process and equal protection mandate that gay couples be permitted to marry. As a fitting culmination to what she had started more than a decade before, Mary Bonauto argued the case for our side on the question of whether all fifty states were required to allow gay couples to marry, and experienced Supreme Court advocate Doug Hallward-Driemeier argued that out-of-state marriages between gay couples had to be recognized in all fifty states.
As I sat there listening to the arguments of John Bursch, the former solicitor general of Michigan, I remember thinking that if these were the only arguments our adversaries were still willing to advance in court, then there was little chance that we were going to lose. Bursch, for example, asserted assuredly to the justices that the “view on the other side here is that marriage is all about love and commitment. And as a society, we can agree that that’s important, but the State doesn’t have any interest in that.” As I often find myself saying to my son, “Wait a minute.” The government doesn’t have any interest in the love and commitment of married couples? Not only was that news to me and almost everyone else in the courtroom, but it was inconsistent with the lived experiences of most Americans.
Whatever lingering doubts I had that we might lose were dispelled after the following exchange between Bursch and Justice Kennedy:
BURSCH: And what they are asking you to do is to take an institution, which was never intended to be dignitary bestowing, and make it dignitary bestowing . . .
JUSTICE KENNEDY: [J]ust in fairness to you, I don’t understand this not dignity bestowing. I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage.
BURSCH: It’s supposed to—
JUSTICE KENNEDY: It’s dignity bestowing, and these parties say they want to have that—that same ennoblement.
BURSCH: Sure.
JUSTICE KENNEDY: Or am I missing your point?
BURSCH: I think you’re missing my point. If we go back to that world where marriage doesn’t exist and the State is trying to figure out how do we link together these kids with their biological moms and dads when possible, the—glue are benefits and burdens, but not necessarily dignity. You know, dignity may have grown up around marriage as a cultural thing, but the State has no interest in bestowing or taking away dignity from anyone, and certainly it’s not the State’s intent to take dignity away from same-sex couples or—or from anyone based on their sexual orientation.
JUSTICE KENNEDY: Well, I think many States would be surprised, with reference to traditional marriages, they are not enhancing the dignity of both the parties.
But perhaps the most dramatic and critical moment at the oral arguments that day turned out not to be what any of the justices or lawyers had to say. Approximately thirty minutes into the arguments, a man in the back of the galley started screaming violently that all “gays” were going to hell. While his words don’t show up in the official transcript, the heckler, who was soon removed from the courtroom and arrested, kept shouting, “If you support gay marriage, you will burn in hell” and “Homosexuality is an abomination,” as he was being dragged out of the building. Even though the courthouse was full of federal marshals that day, the experience was frightening. On the other hand, it’s hard to imagine a more powerful demonstration of the kind of irrational hatred and prejudice against a minority group that in the past has caused our nation’s highest court to step in to enforce the mandates of our Constitution.
After the argument ended, the waiting game began again. Although not as torturous for me as it was in 2013, it wasn’t exactly relaxing, either. However, when on June 22 the Supreme Court added June 26 as a new date for the Court to release decisions for the term, I knew that we had won. There was no way that the Supreme Court was going to issue a decision harmful to the rights of gay people on June 26—the anniversary of both the Lawrence and the Windsor decisions. So when the decision came out on June 26, as I sat in San Francisco, away on business, on a conference call with Edie, Rachel, and the rest of the Paul, Weiss team, I felt an almost indescribable sense of exhilaration, one that only became stronger when I read Justice Kennedy’s opinion itself.
To the extent that there had been any remaining uncertainty as to whether the Windsor decision had stood for the equal dignity of gay people, Obergefell made that point explicitly. In words bound to be read by officiants at weddings for many years to come, Justice Kennedy wrote:
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than they once were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right. . . .
It is so ordered.
This was it—all that we had ever hoped and worked for. Immediately, gay and lesbian couples began marrying throughout the country. Even in Mississippi, after some initial hemming and hawing by Governor Phil Bryant, the Fifth Circuit ruled as follows on July 1, 2015: “Obergefell . . . is the law of the land and consequently, the law of this circuit and should not be taken lightly by actors within the jurisdiction of this court.” Our Mississippi clients Andrea Sanders and Becky Bickett were finally married in their hometown of Pass Christian on July 5, 2015, with their twin sons there as witnesses. Rather than try to describe their feelings for them, here are Andrea’s own words: “OK. For those of you who have been wondering when it is happening . . . we are getting married this Sunday. After 11 years, it is finally happening!” Since we couldn’t be there in person, and to reciprocate for all the great Southern food we had shared together, we sent them a gift basket of food from Zabar’s on the Upper West Side.
THERE WERE MANY times during the summer after Windsor was decided when I felt like the guy in the Chagall painting, floating high above the world in a state of exultation. Rabbi Heschel has referred to this as a “sense of the ineffable.” But we obviously can’t live every day in the clouds. While we all have to return to the ground, I still experience those Chagall moments at times. That certainly happened on June 26, 2015, when the Supreme Court handed down its decision in Obergefell v. Hodges. I also experience that feeling whenever I encounter something that is completely ordinary today that would have been completely extraordinary only a couple of years ago. Perhaps the best example of this is when our then-seven-year-old son Jacob asked us, after we had watched the movie My Fair Lady, whether it was an old-fashioned movie since it was made “before men could marry men.”
In the end, “it’s all about Edie” is really only another way of saying that it’s all about dignity. While cases, precedents, and constitutional doctrine matter, so do the lives of the people targeted by discriminatory laws. I had to recognize my own dignity as a lesbian before I could be truly effective as an advocate. Those brave queens at Stonewall had to fight back in 1969 so that they would no longer be subject to arrest simply for being gay. Evan Wolfson, while still a student at Harvard Law School, had to have the vision to write a paper in
1983 entitled “Samesex Marriage and Morality: The Human Rights Vision of the Constitution.” Mary Bonauto had to bring those first cases in Vermont and Massachusetts when many thought she was being reckless, crazy, or both. Edie Windsor had to stand up and sue the United States of America to honor her marriage to Thea Spyer. Jim Obergefell in Ohio and Carla Webb and Joce Pritchett in Mississippi had to go to court to have their marriages legally acknowledged. Countless other gay men and lesbians had to step forward and demand that their dignity be recognized by their families, neighbors, colleagues, and finally their own government. And, together, we changed the world.
Here I am “talking” with my parents on my first birthday in 1967, just a few months after Edie and Thea became engaged.
Aaron Belkin and me at our high school prom in Cleveland in 1987.
Sitting at Chief Judge Kaye’s desk (which previously belonged to Judge Benjamin Cardozo) during my clerkship.
Rachel Lavine and Emily Giske marching for the Gay & Lesbian Independent Democrats at New York’s Gay Pride Parade in 1995. New York Assemblymember Deborah Glick and LGBT activist Tom Schuler are with them.
Edie and Thea in August 1969, two years into their forty-year engagement. Courtesy of Edie Windsor
Edie at her job writing software for IBM. Courtesy of Edie Windsor
Edie and Thea at their Toronto wedding in 2007. Photograph by Virginia Moraweck
Rachel and me walking with our parents at our wedding in September 2005. © Dana Siles Photographer
Rabbi Jan Uhrbach marrying us under the chuppah at Rachel’s parents’ house in Rhode Island. © Dana Siles Photographer
Then Comes Marriage Page 30