Monday, April 27, 2015

Marriage Plaintiffs Bring Diverse Stories to Supreme Court

      James Obergefell will apparently go down in the history books as the lead plaintiff in the same-sex marriage cases perhaps like Linda Brown in the school desegregation cases or like lesser known, unsuccessful civil rights litigants such as Michael Hardwick in the decision upholding anti-sodomy laws, Bowers v. Hardwick. But the Ohio widower’s suit, now known as Obergefell v. Hodges, was neither the first nor the broadest of the four cases set to be argued before the Supreme Court on Tuesday [April 28] in what may be a climactic showdown on marriage rights for same-sex couples.
      Instead, the first and the broadest of the four cases was filed by Michigan nurses April DeBoer and Jayne Rowse in January 2012, a year-and-a-half before Obergefell filed his suit in his home state of Ohio. DeBoer and Rowse, unmarried but in a long-term committed relationship, went to federal district court in Detroit as the concerned mothers of three children adopted from the state’s foster care system.
      Michigan law prevented DeBoer and Rowse from jointly adopting each of the three children. They asked in their suit simply for joint adoption, but Judge Bernard Friedman suggested they broaden the suit into a direct attack on the state’s ban on same-sex marriages. Friedman then presided over a full-dress, nine-day trial before ruling the state ban unconstitutional on March 21, 2014.
      Obergefell, a one-time IT consultant now working in real estate in Cincinnati, filed his suit in July 2013 along with his legally married husband, John Arthur. Arthur had been stricken in 2011 with ALS  the neuromuscular condition known as Lou Gehrig’s disease  and by 2013 was degenerating rapidly toward an imminent death.
      Obergefell and Arthur were married in Maryland in July 2013, barely two weeks after the Supreme Court’s decision in United States v. Windsor to strike down the major part of the federal Defense of Marriage Act. The ceremony was performed in a medically equipped plane still parked on an airport tarmac. Back in Cincinnati, they filed a federal court suit asking for an order that Arthur’s death certificate reflect his marriage to Obergefell despite the state’s non-recognition provision. Judge Timothy Black issued the order and then broadened his ruling in December 2013 to prohibit Ohio authorities generally from refusing to recognize same-sex marriages from other states.
      Plaintiffs in the Kentucky and Tennessee cases went to federal court with the same type of concrete interests in winning legal recognition of their relationships. In Kentucky, Greg Bourke and his husband Michael DeLeon filed suit on July 26, 2013, along with three other married same-sex couples, seeking to strike down the state’s non-recognition provision. Bourke and DeLeon had been together since 1981 and were raising two children together. They had married in New York in 2004 and, like DeBoer and Rowse in Michigan, wanted to be recognized jointly as parents of each of the two children.
      Judge John Heyburn II ruled in their favor on February 12, 2014, but issued a broader ruling after two unmarried couples joined the suit to directly challenge Kentucky’s ban on performing same-sex marriages. Heyburn’s ruling, issued on July 1, is the only one of the rulings in the four cases to hold sexual orientation a suspect classification and laws based on sexual orientation subject to heightened constitutional scrutiny.
      In Tennessee, Valeria Tanco and Sophia Jesty went to federal court in October 2013, among other reasons, to be eligible for family health plan coverage from the University of Tennessee, where they both taught veterinary medicine. They had met as classmates at Cornell’s College of Veterinary Medicine, married in New York, and then moved to Tennessee when they were both offered faculty positions at the state school. Tanco was also pregnant when the suit was filed, and the suit sought to ensure that both women would be listed as parents after the child’s birth.
      Two other married same-sex couples who relocated to Tennessee for job-related reasons similar to Tanco’s and Jesty’s joined the suit, seeking to nullify the state’s non-recognition provision. Judge Aleta Trauger ruled for the plaintiffs on March 14, 2014, citing Heyburn’s decision from one month earlier in several places. “All relevant federal authority” supported the couples’ cases, Trauger wrote. Proscriptions against same-sex marriages, she predicted, “will soon become a footnote in the annals of American history.”
      Despite the lower courts’ unanimity in the four cases, the Sixth U.S. Circuit Court of Appeals upheld the challenged state laws in a split decision on November 6, 2014. Writing for the majority, Judge Jeffrey Sutton said the issue was better left to legislatures than to courts; he deferred to the states’ policy arguments that the bans encouraged responsible procreation by opposite-sex couples and avoided risks of raising children in same-sex households. Judge Deborah Cook joined the decision.
      In a blistering dissent, Judge Martha Craig Daughtrey criticized what she called Sutton’s “false premise” of looking to legislatures instead of courts to safeguard rights. If the courts shirk their “responsibility to right fundamental wrongs left excused by a majority of the electorate,” she wrote, the constitutional system of checks and balance will “prove to be nothing but shams.”
      Obergefell’s case is listed first only because it was the first to be filed at the Supreme Court, all on the same day. In news interviews, Obergefell has said he is fighting for himself and his husband, who died on October 22, 2013, before any of the substantive rulings in the four cases. Obergefell filed the suit initially against the state’s governor, John Kasich, but the lead defendant is now Russell Hodges, director of the state’s department of health.

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