Obergefell: A Personal Take on the History of the Marriage Cases

Red Equality SignMost of you will hear snippets on the radio or see a headline. You’ll see a few comments or profile picture changes on Facebook.

Some of you may think, “Why are we even still talking about this?” Others may say to themselves, “That’s a very sad story;” and then go about their business of the day. Some will be angry that the government enforcement of their religious beliefs are about to be “discarded on the ash heap of history,” as one Pennsylvania judge said last year.  Others may not know what I’m writing about at all – please read on if you don’t and if you care.

Obergefell is the guy who flew from Cincinnati to Maryland in a medical transport plane to marry his long-time partner who was dying of Lou Gehrig’s Disease (ALS). The partner, John, is dead. Obergefell would like to be listed as his husband on the death certificate but cannot be because Ohio, where they lived together and where John died, does not recognize gay marriage. This is one of the petitions before the U.S. Supreme Court tomorrow along with other sad stories of discrimination.

I’ve been putting on a happy face about these cases for a lot of years. I am happy with the Windsor decision (2013) and with many of the opinions that I read in the ensuing years. Today, I’m here to say I’m not really happy. I’m angry. It’s just not pleasant to sit and listen to people debate my life, but that’s what I’ll be doing again tomorrow.

The Supreme Court doesn’t allow live broadcast of its hearings. There will be blogging and tweeting and a recorded tape will be released some hours after the arguments end. The courtroom is actually quite small. There is more seating in most U.S. District Court courtrooms than in the U.S. Supreme Court. People care so much about Tuesday’s arguments that the line to get in started to form at 6:00 a.m. on Friday. Those folks staying in line are quite weary by now. I’m weary, too. Along with being angry.

Here are a few things I’ll be remembering tomorrow as I read the live stream blog of the Supreme Court arguments and throughout the coming months as we wait for the June decision:

  • October 10, 1972: I’ve been in law school for less than a month. I’m 22. The U.S. Supreme Court issues an order in Baker v. Nelson declaring that Minnesota’s denial of a marriage license to two men does not “present a substantial federal question.” I’m scared.
  • A snowy Sunday morning in the 1970s: I’m reading the papers on the couch with my lover. We are a couple of young professionals in an apartment off Lincoln Park in Chicago.  If it weren’t snowing, we’d probably be golfing. I saw an ad for a new golf course development in a suburb and I said, “Let’s run out and look at this – maybe we can buy a house there!”  She said, “HAVE YOU LOST YOUR MIND?” We even discriminated against ourselves in the 70s. I’m sad.
  • June 30, 1986: I’m a partner in my law firm and living with my future wife and our two teenagers. I pick up the Chicago Sun-Times as I walk to my evening train and read that the U.S. Supreme Court in Bowers v. Hardwick has upheld the conviction of a man for having sex with another man in his own home. I sit stunned as the train makes its way north to my home in Evanston, which doesn’t feel quite so safe anymore. I decide that it is past time for me to become active around the issues of gay rights. Over the next years, I serve on the board of a political action committee and help pass the Chicago non-discrimination ordinance.
  • I sit in a partners’ meeting in 1989, the lone female in the room of about 100. The young men are fighting with the old men about restructuring our firm’s health insurance policy as it relates to the cost of dependent coverage. The night wears on and finally I’m fed up. My future wife has just left her employer to start a private practice and she has no health insurance. I stand up. I say, “I’m tired of paying for health coverage for all of your wives and children while you are not paying for mine.” Eighteen months later, my law firm becomes the first in Chicago to provide health insurance to “domestic partners.” We pay federal taxes on the value of that insurance, unlike my heterosexual partners.
  • It’s 1992. I’m sitting in my office with an ACLU attorney discussing an employment discrimination case we are handling together. Our discussion turns to a similar case developing in New Jersey where a man has sued the Boy Scouts for expelling him after he revealed he was gay. The LAMBDA attorney handling that case was pushing the GLBT community to move away from emphasizing employment cases toward suing for the right to marry. My ACLU associate thought that notion insane. He argued it would create a tremendous backlash. I sided with Evan Wolfson’s view that we had to change the law not just to change the law but to use the legal change to change society’s views. Seeking the right to marry — showing the nation who are families are — was a more effective way to accomplish that than a series of employment and housing discrimination cases. Evan Wolfson lost his Boy Scout case in a 5-4 decision before the U.S. Supreme Court in 2000 but went on to found the LAMBA Freedom to Marry Project in 2001. LAMBA attorneys are the lead attorneys for Mr. Obergefell before the U.S. Supreme Court tomorrow.
  • Shortly after that office conversation, I got a call with a request that I prepare an expert witness for testimony in a case brought in Colorado to challenge a voter-approved amendment to the Colorado Constitution. The law would have prevented any city, town, or county in the state from taking any legislative, executive, or judicial action to recognize homosexuals as a protected class. I was swamped at the time so I enlisted an excellent associate in my firm to assist. As usual in these situations, she did most of the work. Still, I had the privilege of meeting the witness, a history professor at the University of Chicago, and learning more about GLBT history and oppression than I ever imagined. He testified in Romer v. Evans, which went our way in the U.S. Supreme Court in 1996. I’ve been delighted to read his research cited in the marriage cases of recent years. Romer was the beginning of the end for opponents of equality for GLBT people. Nineteen years after this beginning, we are still fighting and there will be many battles ahead. Don’t tell me that this “sea-change” has come too fast, Justice Ginsberg.
  • I breathed a sigh of relief in 2003 when Lawrence v. Texas expressly overruled Bowers.
  • We lived through the ups and downs of marriage in Hawaii, of Proposition 8 in California, and through state-by-state battle around the country. A few months after our marriage in California in 2008, we celebrated a win in the Iowa Supreme Court (yes, Iowa, my home state).  Finally, we celebrated the downfall of Clinton’s embarrassment, the Defense of Marriage Act, in Windsor in June 2013.

Since Windsor, we’ve watched lower court decisions roll out in our favor at a tremendous pace. However, the Sixth Circuit Court of Appeals held in a 2-1 decision that courts should not decide whether states are required by the Equal Protection Clause of the U.S. Constitution to issue marriage licenses to same-sex couples. These two judges think that the right to marry should be governed by political forces in state legislatures and by voter referenda. That’s the first question before the U.S. Supreme Court tomorrow. If they discard that tired argument, it gets complicated, but we are likely to win.

Is this too soon, as some have said? Is it too shocking? Should we be patient and go state-by-state to gain the support even more slowly than we have?

I’m weary and angry and enough is finally enough.  I look forward to victory in June.

Turn the Internet Red

Note to readers: I cite to Wikipedia instead of the actual cases to make the source material more readable for you. You can follow the Wikipedia citations for more details if you wish.

Author: Ann Heitland

Ann Heitland is a writer, living in Flagstaff, AZ. She's also a golfer, ex-lawyer, retired real estate broker, and active Democrat.

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